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Per Curiam.
The appellant in this criminal case, Raymond Lewis House, retained attorney Robert F. Morehead to represent him on appeal. Mr. Morehead moved to be relieved as counsel, stating that he found the appeal to be without merit. An abstract of the proceedings, a statement of the case, and an affidavit of no merit were filed by Mr. Morehead. However, he has failed to brief matters in the record that might arguably support an appeal, or to list the appellant’s objections and motions that were overruled or denied at trial, as required by the Arkansas Supreme Court and Court of Appeals Rules of Appellate Procedure. The Office of the Attorney General has supplied a list of the appellant’s objections in a brief for the State concurring in Mr. Morehead’s opinion that the appeal was without merit, and citing authority to support that proposition.
The question which presents itself is whether a no-merit appeal brief written entirely by the State comports with the constitutional requirements of equal protection and due process set out in Anders v. California, 386 U.S. 739 (1967), and Evitts v. Lucey, 469 U.S. 387 (1985), as well as the requirements of Rule 11(h). Anders involved a no-merit motion filed by appointed counsel in a criminal case. The Supreme Court held that a mere affidavit of no-merit was insufficient, and stressed the importance of the attorney acting in the capacity of an advocate in such cases:
Hence California’s procedure did not furnish petitioner with counsel acting in the role of an advocate. . . . The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity.
386 U.S. at 743-744. In a recent case, a Texas appellate court has held that Evitts and Anders, read together, require that the Anders procedure for handling no-merit appeals should apply in the case of retained counsel, as well as appointed counsel. See Roberts v. State, 705 S.W.2d 803, 805 (Tex. App. 1986). Because it is arguable that affirming a conviction wholly on the strength of a brief drafted by the State would constitute a denial of the due process right to effective assistance of counsel enunciated in Evitts, we direct that Mr. Morehead comply with the requirements of Anders, Evitts, and Rule 11(h), by filing a proper brief on or before March 4, 1987. | [
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James R. Cooper, Judge.
The appellant and Julia Kupers were divorced in 1970. Julia Kupers was awarded custody of the parties’ two minor children, and the appellant was ordered to pay child support to her until each child reached the age of twenty-one years. Julia Kupers died on November 22, 1985. Julia Kupers’ mother, Julia Woolley, was appointed guardian of the minor children after the death of Julia Kupers. On behalf of the minor children, Julia Woolley filed a motion in the chancery case against the appellant seeking enforcement of the minors’ right to support. The appellant defended, claiming that, since Julia Kupers was deceased, all matters between the appellant and Julia Kupers had ceased, and Julia Woolley could not maintain the action to enforce support orders against him on behalf of the minor children because she was not a party to the original divorce.
First, the appellant claims that the court lacked jurisdiction because of lack of service of process. The supplemental record filed in this case reveals that the appellant was served by certified letter in compliance with ARCP Rule 4. We affirm as to this point.
For his second point for reversal, the appellant argues that the jurisdiction of the chancery court terminated upon Julia Kupers’ death, relying on Brown v. Brown, 218 Ark. 624, 238 S.W.2d 482 (1951). Brown, however, involved a matter of custody. The situation in the case at bar is more similar to that found in McLaughlin v. Todd, Guardian, 201 Ark. 348, 145 S.W.2d 725 (1940). In McLaughlin, the parties were divorced in 1927, and Mary Belle McLaughlin was awarded custody of the parties’ minor child along with child support. Only a few payments were ever made by the appellant to Mary Belle, who died in 1936. In 1938, the appellee was appointed guardian of the child of the appellant and Mary Belle McLaughlin. The guardian then sought to intervene in the original divorce case seeking recovery of accrued child support. The chancellor awarded the guardian judgment for accrued child support, and, on appeal, the appellant claimed that, when Mary Belle McLaughlin died, the chancery court lost jurisdiction of the subject matter of their divorce action because the action abated upon her death. The court stated:
This is not a suit on the judgment in favor of Mary Belle McLaughlin for the support of the child, granted in the divorce action, but it is an attempt by appellee as guardian to intervene in the old action and to require appellant to make the payments to her that were ordered to be made to Mary Belle. There can be no doubt that on the death of Mary Belle payments that otherwise would have accrued in the future stopped. Up to her death appellant’s liability for the support of his child was limited to the decree, but after her death his common-law liability for the support of his child intervened and supplanted the decree.
Id. at 350-51. Further, the court in McLaughlin said . . upon the death of one of the parents . . . the divorce decree ceases to have any further continuing effect, [citations omitted] at least when, as here, the decree makes no provision for its continuance beyond the lives of the parents.” Id. at 352. The court went on to conclude:
It appears to us, therefore, . . . that the divorce action between appellant and Mary Belle McLaughlin abated on her death in 1936, and that an intervention by appellee in that action in chancery court in 1938 to recover the accrued installments was unavailing, the chancery court being without jurisdiction. Whether appellee has any remedy and, if so, in what court it may be enforced, we do not decide.
Id. at 353. The same result was reached by the Court of Appeals of the State of Washington in Ross v. Azcarate, 39 Wash. App. 245, 692 P.2d 897 (1984). On facts similar to those in the case at bar, the Washington court held that the guardian simply does not have standing to enforce the provisions of a divorce decree. The same is true in the case at bar. The appellant’s right to custody, although revived on the death of Julia Kupers, was supplanted by the guardianship proceeding; however, his common-law obligation to support his children has not terminated. As in McLaughlin and as in Day v. Langley, Administrator, 202 Ark. 775, 152 S.W.2d 308 (1941), any remedy the appellee may have must be found in a court that has jurisdiction and not in the chancery court that has lost jurisdiction by virtue of the death of Julia Kupers. Accordingly, we reverse.
Reversed.
Cracraft and Coulson, JJ., agree. | [
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Smith, J.
McCoy, Bookout and Osborne, were jointly indicted for the murder of William McAllister. McCoy pleaded a former acquittal; but his plea was adjudged bad upon demurrer. The plea and the record evidence offered to sustain it, show that the offense of which he was for merly acquitted, was an assault with intent to kill, committed upon Mary McAllister, the wife of the deceased. The theory of the plea is, that the- conflict, in which Mc-Allister was killed and his wife wounded, was one and the-same transaction, for which two separate indictments were returned; that his defense was the same in both eases, viz.: An alibi; and that he is protected by the previous verdict from any further prosecution growing out of the same affair. The plea sets forth, however, that it was not by the same shot that the two injuries were inflicted.
In State v. McMinn, 34 Ark., 160, the defendant had been previously indicted, tried and acquitted upon a charge of stealing a cow and two heifers, the property of one Carroll. To an indictment which charged him with stealing a hull, the property of one Adney, he pleaded the former acquittal in bar. But it was held that, as upon the first indictment, he could not have been possibly convicted of the offense described in the last indictment, the plea presented no bar.
A similar result was reached in Williams v. State, 42 Ark., 35, where the defendant was first indicted for stealing the money of Mrs. Elliston, viz.': Two greenback bills, two national bank bills and two silver certificates, of the denomination of $10 each; also ten silver dollars, ten halves and ten quarters. The defendant having pleaded not guilty, a jury was impanneled and sworn ; and after witnesses were examined, and counsel had argued the case, and the court had charged the jury, a nol. pros, was entered. The defendant was afterwards indicted for stealing two greenback bills and two national bank bills, each of the denomination of $20, and one hundred silver dimes, and one' hundred nickels belonging to Mrs. Elliston. He pleaded former jeopardy, alleging that it was all one and the same larceny. But a conviction was sustained upon the ground that, under the first indictment, he could not have been convicted of stealing any piece of the money described in the second.
In Morgan v. State, 34 Texas, 677, the defendant had been acquitted of the theft of $8.50, alleged to have belonged to one Warwick, and to have been stolen from his dwelling-house and from his possession. He was again indicted, and this time convicted of the theft of $8.50, the money of Richard Peterson, and stolen from his house, but in the possession of Warwick. And it was ruled that the offenses were distinct.
These precedents suffice to show that there is no identity of accusation in the case at bar, and the one on which McCoy was acquitted. The injured persons were not the same; the grade and punishment of the two offenses were different. The indictments were not even founded on the same physical act; and their legal effect is different.
The defendant was then put on trial, upon his plea of not guilty and was convicted of murder in the first degree. He moved in arrest of judgment, for insufficiency of the indictment and because he had not been furnished with a copy of it forty-eight hours before arraignment. No defect is perceived in the form of the indictment. The other objection is not available on motion in arrest; because, even if such a motion raises any other question than the sufficiency of the indictment (Mansf. Big., see. ^302), yet the fact that the clerk had not delivered to the defendant a copy of the indictment, does not appear on the record. The utmost effect of such an omission of duty is, that if a defendant does not waive his right in this respect, and Is forced to trial without a copy, it lays a foundation of a motion for a new trial. But by pleading and going to trial without insisting on his privilege, the defendant waives it. Johnson v. State, 43 Ark., 391.
The motion for a new trial alleged that the verdict was against evidence; that improper evidence was admitted and competent evidence excluded, and that the jury were misdirected.
The testimony revealed a revolting instance of coldblooded assassination. McAllister and his family were seated around a winter fire in their own house. It was two hours after night had set in. The busy housewife was carding wool. Upon this peaceful scene, three men, with pistols in their hands, intruded. They effected an entrance by bursting open the door of the house, and immediately began an indiscriminate firing upon McAllister. His wife, in attemptiog to protect him, was struck over the head with a pistol, and received a shot in her arm, which rendered amputation necessary. McAllister was killed. The three men were recognized by Mrs. McAllister, her daughter and her three sons, as McCoy, Bookout and Osborne. They were neighbors, well known to all the family, and they wore no disguise. According to their testimony, McCoy fired the fatal shot. Bookout and Osborne had a private grudge against McAllister because he had recently sworn out a warrant against them. They had made an attack upon him on the public highway, when he was compelled to take refuge in the house of a neighbor. No motive was known for McCoy’s participation in the crime. He was supposed to be on friendly terms with the McAllisters. But he was a brother-in-law to Bookout and had evinced some excitement about the time that the writ was issued for the arrest of Bookout and Osborne, and had expressed an opinion that McAllister might as well select the place he wished to be buried in. In opposition to this testimony, McCoy and four other witnesses .swore that he was at the house of Nathaniel Eskridge, two and a-half miles from McAllister’s, at the time the murder was committed, and indeed until Osborne was brought there wounded, he having been shot in the neck by one of his comrades in the course of the conflict at McAllisters. But the jury chose to believe the witnesses for the prosecution, and to disbelieve the defendant’s witnesses. The state had in truth introduced' evidence tending to prove that three of the defendant’s witnesses were not of unimpeachable character.
We do not interfere with verdicts on the ground that they are not warranted by the testimony, unless there is a total absence of proof on a material point, or the proofs so eompletély fail to support the verdict, that, in order to arrive at their conclusion, the jury must have acted from prejudice or partiality.
The homicide occurred in the year 1874, but the trial did not take place until 1885, in consequence of the defendant’s escape from custody and flight to Texas, where he passed under an assumed name. Several of the witnesses, who had testified in the examining court, and whose testimony had then been reduced to writing, were now dead, or out of the jurisdiction. These minutes were readby agreement. Eskridge, in his deposition, after stating that Osborne came to his house, in the night of January 26, 1874, and related how he had been shot at McAllister’s, had sworn that McCoy spoke up and said, “ Sam (addressing Osborne), I told you and Ben Bookout, three or four days ago, to keep away from there. I would not it was me for the whole world.” These declarations of McCoy were properly excluded from the jury. They were no part of the res gestee, but merely narrative of a past occurrence and hearsay.
The defendant gave evidence in his own behalf. Amongst other things he stated that he dressed Osborne’s wounds at the house of Eskridge; that upon an intimation by Eskridge that he did not wish to harbor Osborne, defendant had carried him to Mrs. Bookout’s, and had put him away in the corn crib; that defendant went next morning after Osborne’s brother, not with any view to aid his escape, for he supposed him to be mortally wounded, but merely that his brother might come and nurse him; and that defendant did not understand until noon of that day, when he was arrested, that McAllister was dead, although Osborne had told him that he and Bookout had shot him. The defendant’s attention was particularly called to his statement made in the examining court, not under oath however. The state then put in evidence this statement, in which the prisoner had given a different version of some of these transactions; and also had Osborne’s brother sworn, who stated that McCoy came to him, in the morning of January 27, 1874, and informed him that his brother Sam and Bookout had killed McAllister the night before; that Sam was lying wounded in Mrs. Bookout’s crib; and advised that he be gotten out of the way before the officers came. Exceptions were properly saved; and it is now contended that this line of evidence was not legitimate ; that it had no tendency to prove the defendant’s guilt of the crime whereof he was on trial, but only to prejudice him in the eyes of the jury by showing that he had harbored and protected one of McAllister’s murderers and connived at his escape — a crime for which the prisoner was not indicted.
The answer is, that McCoy appears here in the double character of an accused party on trial and of a witness. He opened the door to this cross-examination by first testifying voluntarily to matters which occurred subsequently to the killing. And a witness may always be discredited by proving that he has made contradictory statements on a former occasion, provided he is first inquired of concern ing such former statement. Drennen v. Lindley, 15 Ark., 359.
A defendant in a criminal case takes the stand like any other witness. He is subject to the same liabilities on cross-examination as are other witnesses. His character for veracity may be impeached, though his good character may not have been previously put in issue. And he may be contradicted by proof of prior inconsistent statements. 1 Bish. Cr. Pro., sec. 1182, et seq.; Wharton’s Cr. Ev. 8th ed., secs. 429, 434, and cases, cited; Brandon v. People, 42 N. Y., 265; State v. Owen, 78 Mo., 367.
The court refused the following prayers of the defendant for directions:
“The charge against the defendant involves his presence at the time and place of the commission of the alleged murder, and if the jury have a reasonable doubt, from the whole testimony in the case, of the defendant’s presence at the time and place of the commission of the offense charged, it is their duty to acquit him.”
“ If the j ury believe from the evidence that Ben Bookout and Sam Osborne, on the night of the 26th of January, 1874, in the county of Pope, and state of Arkansas, killed and murdered William McAllister, and that the defendant Jas. McCoy, at the time of the commission of the said murder, was at the house of Nathaniel Eskridge, or the jury entertain a reasonable doubt of that from the whole testimony in the case, they will find him not guilty.”
“ The law presumes the defendant innocent; and this presumption remains, and is to be considered by the jury as evidence in the case until the contrary appears from the evidence.”
“It is competent for the defendant to introduce evidence •of his general good character as a peaceable and law-abiding man; and this is to be considered by the jury as a circum stance in the testimony tending to establish the improbability of his having committed the crime charged against him.”
“It is competent for the state to introduce evidence of a-grudge or bad feelings existing between deceased and defendant, or any testimony that would reasonably tend t,o-establish a motive for the defendant to do and commit the-crime charged; and if the absence of motive appears from the evidence, this is a circumstance to be considered by the-jury in determining the guilt or innocence of the defendant.”
' But the jury had already been instructed that the state-was bound to prove every material allegation in the indictment to their satisfaction beyond a reasonable doubt, and) the material allegations in this indictment had been pointed out. It had been explained to them that the defense was-an alibi; and that if the proof raised in their minds a reasonable doubt as to the defendant’s presence at the time and place of the killing, it was their duty to acquit. They had also been told that motive, or the absence of motive, to-commit the crime, was a circumstance to be considered by them in determining his guilt or innocence; and that previous good character was also to be taken into account;: but if the evidence showed his guilt, they should so find,, notwithstanding his good character.
The multiplication of instructions is to be deprecated, as-tending to confuse and embarrass the jury, rather than to-enlighten them. If the trial court give the law correctly and with'sufficient fullness upon all the pointsarising in-the case, it is no error to refuse additional requests, which simply present the same ideas, couched in different language. Crisman v. McDonald, 28 Ark.; 9; Kelly v. Jackson, 6 Pet., 622; Scott v. Lloyd, 9 ib., 418; Saber v. Cooper, 7 Wall., 565; Railway Co. v. Whitton, 13 ib., 270; Ind. R’y Co. v. Horst., 93 U. S., 291.
Judgment affirmed. | [
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Melvin Mayfield, Chief Judge.
On May 11, 1985, the Workers’ Compensation Commission filed an opinion agreeing with an administrative law judge’s decision that the appellant in this case was not entitled to additional temporary total disability benefits and was not entitled to a change of physicians.
By a letter dated June 10, 1983, appellant’s attorney filed a motion for reconsideration which asserted that appellant had raised the issue of entitlement to “current total disability” with the Commission but the issue was not addressed either “directly or indirectly” in the Commission’s opinion. In an order dated July 15, 1983, the Commission held that because no notice of appeal had been filed, its May 11th decision had become final, and it had no authority to grant appellant’s motion for reconsideration. Thus, the motion was denied.
On July 22, 1983, the appellant filed a notice of appeal to this court and argues here (1) that the Commission’s May 11th decision is not supported by substantial evidence, and (2) that the Commission did have the authority to grant the motion for reconsideration. We agree that the decision of May 11th became final since no notice of appeal from that decision was filed within 30 days from receipt of the decision as required by Ark. Stat. Ann. § 81-1325(b) (Supp. 1983). We do not agree, however, that the Commission did not have authority to grant appellant’s motion for reconsideration.
There is no explicit statutory authority for the Commission to grant petitions for reconsideration, but in Walker v. J & J Pest Control, 270 Ark. 941, 606 S.W.2d 597 (Ark. App. 1980), the court said, “We are of the view that the Commission does have authority to consider a motion for rehearing which is timely filed.” In that case the motion was filed 19 days after the Commission’s decision, and the court said the fact that Ark. Stat. Ann. § 81-1325(b) provides that the decision becomes final within 30 days unless notice of appeal is filed, “supports the concept that the Commission has jurisdiction during such 30 day period to reopen the case for further evidence and modification of the decision.” In Smith v. Servomation, 8 Ark. App. 274, 651 S.W. 2d 118 (1983), we noted that Walker was clarified and limited by Cooper Industrial Products v. Meadows, 5 Ark. App. 205, 634 S.W.2d 400 (1982), which held that neither administrative law judges nor the Commission have the power to waive or extend the thirty days in which their decisions may be appealed; and in a footnote we specifically pointed out that Walker involved a motion for rehearing filed within the thirty-day period for appeal. Therefore, we hold that the Commission did have the authority to grant appellant’s motion for reconsideration in this case. The chairman of the Commission recognized this fact and dissented. From his dissent it appears that the Commission has, in fact, been considering motions for rehearing. Moreover, the General Assembly has met twice since Walker and has not disturbed its holding. We think the rule is established.
We do want to be specific in what is involved in this case. Ark. Stat. Ann. § 81-1325(b) (Supp. 1983) provides that the notice of appeal shall be filed within 30 days from the date of the receipt of the order or award of the Commission. There has been no notice of appeal filed here within that period of time. We agree with the appellee that the filing of a motion for reconsideration, or rehearing, does not extend the time to file the notice of appeal. Thus, the decision which held that appellant is not entitled to additional temporary total disability benefits or to a change of physicians is final. Incidentally, we also agree with the appellee that a motion for reconsideration, or rehearing, may be acted upon within the ninety-day period in which the record on appeal must be filed and docketed. This seems clear because, even though a notice of appeal is filed, the trial court, and by analogy the Commission, retains jurisdiction until the record on appeal is lodged in the appellate court. Brady v. Aiken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968); Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805 (1958).
Although there was no timely appeal from the Commission’s decision of May 11, 1983, the question of whether appellant is entitled to “current total disability’’ — which is the subject of the motion for reconsideration — is a matter for the Commission to decide. We express no opinion on how it should be decided. We also recognize that there may be a question of whether the motion was filed within 30 days from the receipt of the Commission’s May 11 decision. On remand, any question in that regard may be settled by the Commission, except we note that the controlling date is the date of filing, not the date the motion is put on the Commission’s motion docket. Whether new evidence may be introduced and whether the Commission should remand to an administrative law judge are also matters for the Commission to settle. We hold only that the Commission has the authority to grant the motion for reconsideration.
Remanded for proceedings consistent with this opinion.
Glaze, J., not participating.
The court also discussed other provisions of the Act, as well as due process and equal protection considerations. See also 34 Ark. L. Rev. 506 (1980).
See Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981), for the derivation of this ninety-day period. | [
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George K. Cracraft, Judge.
Appellants bring this appeal from an April 23. 1983 order of the chancery court extending the time for filing the record on appeal contending that the trial court erred in ordering the extension at a hearing conducted on less than ten days’ notice to them. We do not agree that the trial court must require ten days’ notice or that the appellants were entitled to receive more than “reasonable” notice of the hearing.
The decree appealed from was entered on December 31, 1982. On January 25, 1983 the appellees filed a timely notice of appeal and ordered a transcript of the evidence. On April 14th the appellees filed a petition for an extension of time in which to file the transcript on appeal and gave appellants notice that the application for the order would be presented to the court on April 20, 1983. A copy of the notice was received by appellants’ counsel on April 15th. On April 19th the appellants filed a motion in opposition to the petition for an extension asserting that the court should conduct no hearing on that motion until “after sufficient time has elapsed from the filing of the petition to give the defendants sufficient time to prepare their defense to the petition.”
On April 20th the hearing on the petition for an extension was reset for April 23rd at which time the appellants again objected to a hearing before the expiration of the time for filing a response, which he contended was ten days as provided in ARCP Rule 6(c). Counsel candidly admitted that he could have easily responded to the motion within the eight days between the date he received notice and the date of hearing but that his duty to his client required that he rely on any technicality which might cause the time for perfecting the appeal to expire before the hearing was held.
The court reporter testified that the term of the chancellor hearing the case had expired on December 31, 1982 and at that time he had had a number of cases under submission. She stated that a number of those cases were finally decided and decrees and orders entered during the last few days of his term. Five of those orders were appealed from and those transcripts would all be due at the same time. She stated that the trial of this case lasted five days, that the transcript would consist'of over 1700 pages and that it was impossible for her to complete the transcript without an extension of time.
In granting the extension the chancellor made the following findings:
1. That the appellants’ application for an extension of time was timely filed; that notice was given to opposing counsel and that all requirements of the rules have been met.
2. That due to the heavy workload of the court reporter and the number of transcripts she is presently working on and the size of this transcript, it is impossible for her to complete the transcript of the testimony in time for the record to be prepared and filed, and that she needs the maximum time of seven months in which to prepare the transcript of the testimony in this matter.
Ark. R. App. P. Rule 5(b) governs the granting of extensions of time in which to file a transcript on appeal. It provides that in those cases where a trial is stenographically reported, on a finding that the transcript has been ordered by the appellant and the further finding that an extension is necessary for the inclusion in the record of evidence stenographically reported, the court may extend the time for filing the record on appeal for a period not to exceed seven months from the date of entry of the judgment. It further provides that counsel seeking an extension shall give the opposing counsel notice of the application for an extension of time.
The appellants contend further that the courts have not declared the meaning of the word “notice” in Ark. R. App. P. 5(b) and that it should therefore require ten days’ notice as set forth in ARCP Rule 6(c). Although Ark. R. App. P. Rule 5(b) states no specific time requirement as to notice, the history of the notice requirements on petitions for extension as set forth in Gallman v. Carnes, 254 Ark. 155, 492 S.W.2d 255 (1973) and the court’s pronouncements in that case make it clear that the only requirement is for “reasonable notice” within the discretion of the trial court.
As recited in Gallman, Ark. Stat. Ann. § 27-2127.1 (Repl. 1962) as originally enacted provided that the court in its discretion might grant an extension of time “with or without notice to opposing counsel and without specifying a reasons for the request if granted within a period previously allowed.” In order to reduce the delay in the appellate process the legislature by Act 206 of 1971 added an additional condition to the granting of extensions by providing that they could be granted only on a showing that the appellant had ordered the transcript of the steno-graphically reported evidence. In Gallman the court construed those conditions to require that a hearing be held and in announcing its attitude toward the hardships which rigid enforcement might impose stated:
Nevertheless, to avoid unnecessary hardship to litigants who are not themselves at fault, we think it best to allow a short period of grace before the provisions of Act 206 will be routinely applied. Moreover, we think it desirable that applications for extensions of time be considered by trial courts only after reasonable notice to other attorneys in the case. We are therefore adopting today by per curiam order a rule implementing § 27-2127.1 as amended.
Appended to Gallman was a per curiam order adopting former Ark. Sup. Ct. R. 26(A) which provided that a trial court might extend the time allowed for the docketing of an appeal if it found that the extension was related to the inclusions of stenographically reported evidence and entered the order of extension before the expiration of the period originally prescribed. It concluded that counsel seeking such an extension of time shall give opposing counsel notice of the application for an extension of time. Although Ark. Sup. Ct. R. 26(A) stated no fixed period of notice it is clear from the Gallman decision that only reasonable notice was required. Effective July 1, 1979, Ark. Sup. Ct. R. 26(A) was superseded by present Ark. R. App. P. 5(b). See Reporter’s Notes to Ark. R. App. P. 5.
Appellants argue that ARCP Rule 6(c) superseded Ark. R. App. P. 5(b). However, ARCP Rule 81 provides that the rules of civil procedure apply to “civil proceedings in chancery, circuit and probate courts.” Ark. R. App. P. 1 provides that those rules govern the procedure on appeals to the Arkansas Supreme Court and Court of Appeals. Former Ark. Sup. Ct. R. 26(A) was deemed superseded by Ark. R. App. P. 5(b) in the same per curiam order in which the rules of civil procedure were deemed to have superseded prior law applicable to civil proceedings in the trial courts.
While we do not agree with counsel that Rule 6(c) has any applicability to appellate procedure, we point out that even that rule does not require that ten days’ notice be given in every case. It provides only that ten days’ notice be given for the hearing, unless a different period is fixed by these rules or by an order of the court.
We find no error and affirm.
Corbin and Cooper, JJ., agree. | [
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Judith Rogers, Judge.
Ken and Rita Moran, Louisiana residents, appeal from an order of the circuit court of Garland County that denied their motion to dismiss for lack of personal jurisdiction an action brought by appellee, Bombardier Capital, Inc. (formerly Bombardier Credit, Inc.), a Massachusetts corporation with its principal place of business in Vermont.
The facts in this case are not disputed. In January 1986, Taylor’s Marine, Inc., of Garland County, by its officers, Kevin and Lori Taylor, entered into a financing agreement with appel-lee. A provision directed that any disputes regarding the agreement would be governed by the laws of New York State. In 1987, to “induce [appellee] to extend credit to [Taylor’s Marine, Inc.,]” appellants signed a guaranty for up to $50,000.00 in loans. Subsequently, appellee provided the additional financing. When Taylor’s Marine defaulted on the loan, appellee brought this action in Garland County to secure payment from appellants. Appellants alleged the court lacked in personam jurisdiction and moved to dismiss the complaint.
In his letter opinion, the trial judge addressed the jurisdictional issue as follows:
The Defendants’ guaranty of the Arkansas debt is substantial. It would appear that no stronger contact could be imagined than Plaintiff would refuse an extension of credit “but for” Defendants’ guaranty [this is true, whether Defendants physically entered the State and signed, mailed or “faxed” the guaranty]. Accordingly the Court finds that there is personal jurisdiction.
Subsequently, the court granted appellee’s motion for summary judgment and awarded appellee $50,000.00.
On appeal, appellants contend that the trial court erred in exercising in personam jurisdiction over them. We agree and reverse the trial court’s decision.
To determine whether a court has in personam jurisdiction over a nonresident defendant, we must undertake a two-part analysis. First, we must consider whether the nonresident defendant’s actions satisfy the requirements of the Arkansas long-arm statute. Second, we consider whether the exercise of personal jurisdiction is consistent with due process. Szalay v. Handcock, 307 Ark. 232, 235, 819 S.W.2d 684, 685 (1991); Capps v. Roll Service, Inc., 31 Ark. App. 48, 53, 787 S.W.2d 694, 697 (1990).
The Arkansas long-arm statute states what is required for Arkansas to exercise jurisdiction with respect to the transaction of business by a nonresident defendant:
1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s:
(a) Transacting any business in this state.
Ark. Code Ann.§ 16-4-101(C)(1) (1987). The supreme court has stated that the purpose of the “transacting business” provision is to permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by due process. Szalay v. Handcock, 307 Ark. at 236, 819 S.W.2d at 686; CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 312, 783 S.W.2d 846 (1990).
Any decision whether or not to exercise judicial jurisdiction over a transaction must also address the due process requirements embodied in International Shoe Co. v. Washington, 326 U.S. 310 (1945). Under International Shoe, supra, and its progeny, the well-recognized test is whether such “minimum contacts” exist between the nonresident defendant and the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
This court has considered the following factors in deciding whether or not a nonresident’s contacts with the forum state were sufficient to impose jurisdiction: (1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties. Capps v. Roll Service, Inc., 31 Ark. App. at 53, 787 S.W.2d at 697; Jagitsch v. Commander Aviation Corp., 9 Ark. App. 159, 163, 655 S.W.2d 468, 470 (1983). Whether the “minimum contacts” requirement has been satisfied is a question of fact, Jagitsch v. Commander Aviation Coro., 9 Ark. App. at 163,655 S.W.2d at 470, and each question of jurisdiction must be decided on a case-by-case basis. Capps v. Roll Service, Inc., 31 Ark. App. at 53, 787 S.W.2d at 697.
The United States Supreme Court held in McGee v. International Life Insurance co., 355 U.S. 220 (1957), that for purposes of due process, a single contract could provide the basis for the exercise of jurisdiction over a nonresident defendant if the contract had “substantial connection with [the forum] State.” Id. at 223. This court previously has exercised in personam jurisdiction in cases involving a single contract such as a guaranty agreement; however, the facts in these cases are distinguishable from the case at bar.
In Meachum v. Worthen Bank & Trust Co., N.A., 13 Ark. App. 229, 682 S.W.2d 763 (1985), cert. denied, 474 U.S. 844 (1985), a resident of Texas challenged an Arkansas court’s exercise of jurisdiction. In affirming the trial court’s exercise of jurisdiction, we held that although the appellant’s contacts with Arkansas were few, they were substantial in nature and quality, stating:
Knowing that the appellee would require his individual guaranty, the appellant sent his financial statement to the appellee in Arkansas and then signed the guaranty agreement which was contained in the lease of personal property between two Arkansas corporations, and admits that he knew the lease would be sent to the appellee in Arkansas, that the property was in Arkansas, and that the payments would be made in Arkansas. . . .
.... The cause of action is directly related to the appellant’s signing as guarantor of an Arkansas contract, and then failing to carry out his promise to guarantee; the Arkansas courts are obviously interested in providing a forum for Arkansas citizens to resolve disputes over contracts executed in Arkansas; and considering the fact that most of the parties were residents of this state, we think the convenience of the parties was best served by the hearing of the case in Arkansas.
13 Ark. App. at 233-34, 682 S.W.2d at 766. We also noted that the appellant was extensively involved with the debtor company as director, officer, and general counsel and that the company was directly responsible for the formation of the Arkansas lessee corporation. Id. at 232, 682 S.W.2d at 765.
We also found jurisdiction over a Texas resident in Akin v. First National Bank, 25 Ark. App. 341, 758 S.W.2d 14 (1988). In that case, the court found evidence that the appellant had delivered a signed loan application, a financial statement, and a personal guaranty to a bank in Conway to induce the bank to loan money to an Arkansas resident for the purpose of buying land in Arkansas. The evidence at trial indicated the appellant’s intention to go into business on that property and, subsequently, he took deed to it. We concluded that the evidence, taken as a whole, provided support for the theory that the Arkansas resident was acting as a “front” for the appellant. Id. at 347, 758 S.W.2d at 18.
However, in CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990), the supreme court held a single contract was insufficient to confer jurisdiction. There, an Arkansas corporation, acting as general contractor for a Mississippi project, subcontracted with a foreign corporation. Although the subcontractor submitted his bid by telephone to the Arkansas contractor, the contract was formalized in Mississippi and mailed to the contractor’s Arkansas business address. The contract provided for payment requests to be mailed to Arkansas, but it contained no provision concerning jurisdiction or applicable law for dispute resolution. Based on these facts, the supreme court held that the foreign corporation’s telephone and mail transactions did not, standing alone, satisfy the minimum contacts required by due process to confer jurisdiction on the Arkansas court. Id. at 314, 783 S.W.2d at 847.
In the case at bar, both appellants and appellee argue that the holding in Arkansas Rice Growers Cooperative Association v. Alchemy Industries, Inc., 797 F.2d 565 (8th Cir. 1986), supports their position in this appeal. In that case, the Eighth Circuit Court on appeal reversed the finding of liability against the individual defendants for lack of personal jurisdiction. Alchemy Industries, Inc. (Alchemy) and Arkansas Rice Growers Cooperative Association, d/b/a Riceland Foods (Riceland), had entered into a contract for the construction of a factory in Stuttgart. Alchemy was required to provide financial assurances either in the form of personal guaranties or in the form of a line of credit from a bank. Several California residents executed per? sonal guaranties to a California bank, which then issued a letter to Riceland guaranteeing Alchemy’s performance of the contract. Although the Eighth Circuit Court assumed for argument that the guaranties ran in favor of both the bank and Riceland, it held that the mere fact that the individual defendants guaranteed an obligation to the Arkansas corporation did not subject the guarantors to jurisdiction in Arkansas. 797 F.2d at 573, citing Arkansas Poultry Cooperative Inc. v. Red Barn System, Inc., 468 F.2d 538, 540-41 (8th Cir. 1972).
Appellee here argues that, although the Eighth Circuit found there were insufficient contacts to sustain jurisdiction, its opinion implies that it would have found jurisdiction if there had been additional facts, including evidence that the beneficiaries of the guaranties would not have entered into the transaction without the guaranties of specific individuals. The Eighth Circuit stated:
In concluding that the assertion of jurisdiction over the guarantors would not offend due process, the district court also relied on the fact that Alchemy had provided Riceland with the financial statements of the prospective guarantors in August 1972 and that Riceland entered into the construction and marketing contracts with Alchemy in reliance on this information. The evidence shows, however, that the financial statements Riceland received in August 1972 were those of the Structural partners. Riceland thus had the financial statements of only nine of the eventual twenty-two guarantors when it entered into the construction and marketing contracts. Furthermore, not until April 1973, after Riceland had executed the contracts, did Riceland receive a list of the prospective guarantors.
Under these circumstances, we hold that there are insufficient contacts between the guarantors and Arkansas to subject the guarantors to the jurisdiction of the Arkansas courts. The mere fact that the individual defendants guaranteed an obligation to an Arkansas corporation does not subject the guarantors to jurisdiction in Arkansas. See Arkansas Poultry Cooperative, Inc. v. Red Barn System, Inc., 468 F.2d 538, 540-41 (8th Cir. 1972). ... It is true that the guarantors stood to profit if the construction contract, the performance of which they guaranteed, was successful. This has been, in part, the basis for finding that the assertion of jurisdiction over nonresident guarantors comports with due process in some cases. See, e.g., Na tional Can Corp. v. K. Beverage Co., 674 F.2d 1134, 1137 (6th Cir. 1982); Marathon Metallic Building Co. v. Mountain Empire Construction Co., 653 F.2d 921, 923 (5th Cir. 1981) (per curiam). In these cases, however, there has been substantive identity of the guarantors and the corporation whose obligation they guarantee, National Can, 674 F.2d at 1138, evidence that the beneficiary of the guarantee contract would not have entered into the transaction without the guarantees of specific individuals, id., or a provision in the guarantee contract or the underlying contract stating that the law of the forum state would control, Marathon Metallic, 653 F.2d at 923. We have found no case in which a court has asserted jurisdiction over a nonresident guarantor merely because the guarantor is a passive investor in the corporation whose debt the guarantor assures.
797 F.2d at 573-74. Appellee concludes that, because there is evidence in the case at bar that appellee relied upon appellants’ guaranties in extending credit to Taylor Marine, its reliance is sufficient to establish jurisdiction. The trial court here apparently accepted appellee’s interpretation of the Eighth Circuit Court’s opinion; however, we do not agree that it supports a finding of jurisdiction in the case at bar.
In applying the long-arm statute and due process requirements to the facts in the case at bar, we find insufficient contacts to sustain personal jurisdiction over appellants. Appellants’ single act has been to guarantee a debt between an Arkansas company and a nonresident corporation. There is no evidence that appellants interjected themselves into the contractual negotiations or that appellants had a close identity with or an economic interest in the Arkansas company. The record is devoid of evidence of even mail or telephone transactions to bring appellants within this state’s jurisdiction. Neither appellants nor appellee are residents of Arkansas. Although a plaintiff is not required to have minimum contacts with the forum state, the plaintiff’s residence is not completely irrelevant to the jurisdictional inquiry, as plaintiff’s residence may be the focus of the activities of the defendant out of which the suit arises, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1983). In addition, the plaintiff’s residence is relevant to the court’s consideration of the interest of the forum state in providing a forum and the convenience of the parties. A provision in the underlying contract in the case at bar directed that any disputes regarding the agreement would be governed by the laws of New York State. Although this has not been presented as a choice of forum case, we recognize that we have enforced such clauses that are fair and reasonable and meet the due process test for the exercise of judicial jurisdiction. See Nelms v. Morgan Portable Building Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). Finally, we cannot say that the appellants’ conduct and connection with the forum state is such that they should reasonably have anticipated being “haled into court” in Arkansas. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). We reverse the judgment against appellants for lack of personal jurisdiction.
Reversed.
Jennings and Danielson, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Appellants appeal from a decree establishing an easement across their land in favor of land owned by appellees. Appellants contend that the trial court erred in holding that a written instrument executed by the parties’ predecessors in 1959 was a valid conveyance of an easement and that it further erred in holding that the easement had been established by prescription. On May 12, 1992, we certified this case to the Arkansas Supreme Court pursuant to Ark. Sup. Ct. R. 29(4)(a). The supreme court declined to accept the case and remanded it to this court for decision. Jurisdiction to determine the issues presented on this appeal is therefore in the court of appeals. We find merit in appellants’ first contention, but affirm the trial court’s determination on the issue of prescription.
Appellants are the present owners of a tract of land which borders on Highway 10 in Pulaski County. Appellees are the present owners of tracts that are contiguous to each other and abut that of appellants on the north. For many years, access to the appellees’ tracts had been obtained by use of a “10-to-12-foot” roadway across appellants’ land to appellees’ property. In 1959, appellees’ contracted to purchase their land from Paul and Louise Gossage. One of the title requirements places upon appellees’ purchase was that the right-of-way theretofore used by Gossage be evidenced by a written document. On August 13, 1959, Paul and Louise Gossage, Nellie May Monday, Chester A. White, and Alice White, the owners of the tracts in question, signed the following instrument:
ROADWAY EASEMENT AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
That we, Paul A. Gossage and Louise E. Gossage, his wife, as owners of the EV2 of the NE!4 SW!4, and the EV2 of the North 10 acres of the SE!4 SW!4, Section 23, Town ship 3 North, Range 16 West, and,
That we, Chester J. White and Alice Pearl White, his wife, as owners of the South 30 acres (except 2 acres lying West of Bringle Creek) in the SE14 SWVi, Section 23, Township 3 North, Range 16 West, and,
That I, Nellie Marie Monday, as owner of the WVü of the NE'A SW!4, and the W14 of the North 10 acres of the SEí4 SW!4, Section 23, Township 3 North, Range 16 West,
for and in consideration of the benefits to accrue jointly and severally to each of us and to assure lasting right-of-way from Highway #10 to property described as the Elh of the North 10 acres of the SE!4 SW'A, said Section, Township and Range described above, do jointly and severally agree as to r/w over and through said lands described as follows:
Beginning at a point on the North r/w line of State Highway #10, a strip of land 25 feet in width shall run northerly along the East side of Bringle Creek to a point where branch meets said Bringle Creek; thence Northerly along the east side of said branch to the South line of property owned by Nellie Marie Monday (being the WVi of the North 10 acres of said SE!4 SW'A, said line being also North line of the property owned by White); thence turning East, said r/w shall be described as the South 25 feet of the North 10 acres of said SE’Á SW14 and running to the West line of Gossage property, being the EV2 of the North 10 acres of said SE!4 SW!4, said Section 23, Township 3 North, Range 16 West,
and that this easement for road r/w shall continue to remain in effect until such time as owners of said lands, or heirs and/or assigns, shall enter into written agreement to cancel same.
And I, Louise E. Gossage, wife of the said Paul A. Gossage, and I, Alice Pearl White, wife of the said Chester J. White, do hereby release and relinquish all my right of dower and homestead in and to the said lands for and in consideration of the benefits to accrue.
IN WITNESS WHEREOF, we hereunto set our hands in mutual agreement on this 13th day of August, 1959.
(This instrument prepared by Hal Moore, 307 Center Street, Little Rock Arkansas.)
/s/ Paul A. Gossage
/s/ Louise E. Gossage
/s/ Nellie Marie Monday
/s/ Chester J. White
/s/ Alice Pearl White
(Emphasis added.) This document was duly acknowledged and recorded in Pulaski County.
The access road to appellees’ property was never enlarged to 25 feet as provided in the document but continued to be by way of the existing passageway. In 1989, appellants interfered with appellees’ use of the roadway by erecting barriers and gates. On October 12,1990, appellees brought this action alleging that they had acquired an easement under the written agreement and, in the alternative, pled that they had acquired the easement by prescriptive use for more than the statutory period. They prayed for injunctive relief from further interference with their use of the road. The chancellor concluded that the document was a valid conveyance of an easement in favor of appellees’ lands, and in any event the continued use of the roadway by appellees and their predecessors had ripened into an easement by prescription.
Appellants first argue that the chancellor erred in holding that the 1959 document was a valid express grant of the right-of-way. In holding that the writing was a valid conveyance of the easement the chancellor stated: “[T]he failure of the agreement to set out granting words is not fatal since it is clear form the four corners of the instrument that the granting of an easement was intended.” We agree with appellants that this was an erroneous statement of the law.
An easement or right-of-way is an interest in land and must be conveyed by deed in the same manner as land is conveyed. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924); Hatfield v. Arkansas Western Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982). See also Johnson v. Lewis, 47 Ark. 66, 2 S.W. 329 (1885); Wynn v. Garland, 19 Ark. 23 (1857). As a general rule, the requisites of a valid deed are competent, identifiable parties and subject matter, a valid consideration, effective words expressing the fact of transfer or grant, and formal execution and delivery. Appellants contend that the document in issue did not meet several of those qualifications.
We first address their contention that the writing did not contain the required words expressing the fact of sale or transfer or conveyance. We agree that it did not.
In Griffiths. Ayer-Lord Tie Co., 109 Ark. 223, 230, 159 S.W. 218, 220 (1913), in dealing with transfer of standing timber, the court stated:
The timber, until the same was severed from the soil, was real estate, and, in order to convey Leffler the legal title thereto, it was absolutely necessary that somewhere in the instrument there should be words expressing the facts of a sale or transfer of the title to him; that is, the words “grant, bargain, or sell,” or words of the same purport. Kirby’s Digest, § 731.
The transfer of the timber growing on the land must be by deed. Any other attempted mode of transfer would be within the statute of fraud and void. [Emphasis added.]
In Penney v. Long, 210 Ark. 702, 197 S.W.2d 470 (1946), the court held that “release, relinquish and quitclaim” were words sufficient to convey an interest in land. In Davis v. Griffin, 298 Ark. 633, 770 S.W.2d 137 (1989), the court declared that mineral rights were an interest in land that must also be conveyed as land itself is conveyed. The court there reaffirmed its earlier statements in Griffith v. Ayer-Lord Tie Co. supra, that, although no particular words are required, it is necessary that there be some operative words expressing the fact of sale or transfer in order to convey legal title to interests in land.
Though we find no case involving the transfer of an easement expressly so holding, we must conclude that, as an interest in land, and easement must be conveyed in the same manner as standing timber, mineral rights, or any other interest in realty. The instrument in this case contains only words of agreement. As there are no operative words of sale or transfer, it was ineffective as a conveyance by deed of a right-of-way. We therefore find it unnecessary to address appellants’ other argu ments for holding the document invalid.
The chancellor also found appellees acquired an easement by use under claim of right for more than the statutory period. The court restricted this easement to the area actually used by the parties during that period. Appellants argue that this finding was not supported by the evidence. We do not agree.
It was undisputed that appellees and their predecessors had used the passageway for over forty years. As the usage began before any of the parties acquired ownership of their tracts, there was no evidence of when or under what circumstances use by appellees’ predecessors began. Appellees contended that their use of the road had at all times been under the claim of right, free from interference by anyone. Appellants argue that there is no evidence that the appellees or any of their predecessors ever asserted a claim to use the roadway as a matter of right, but merely continued a permissive use of the road given by the 1959 document.
Although we have held the written document to be invalid as a conveyance of a present interest in the lands, it is cogent evidence of appellees’ claim that they and their predecessors used the road under claim of right. There was evidence that appellees would not have bought the land without the good-faith belief that they had acquired the right to use that easement and that their use thereafter was under that belief and claim.
Even where the initial usage is shown to have begun permissively, where it is also shown that the usage continued openly for the statutory period after the landowner knows that it is being used adversely, or under such circumstances that it is to be presumed that the landowner knew it was adverse to his own interest, the use may ripen into an easement by prescription. Fullenwinder v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). In Weigel v. Cooper, 245 Ark. 912, 920, 436 S.W.2d 85, 90 (1969), the court stated:
As to the argument that the use of the land was permissive, Fullenwinder v. Kitchens, (heretofore cited) makes it clear that, even if the use was begun under permission, that fact is immaterial if it continues openly for seven years under circumstances that the landowner would be presumed to know that this long continued practice was adverse. The long length of time that the road was used by many persons is, in itself, pertinent evidence of adverse use; actually it appears from the record that this adverse use was established long before Frank Weigal, Jr., had any propriety interest in the land on which the road is located.
See also Stahl v. Thompson, 6 Ark. App. 275, 641 S.W.2d 721 (1982).
Here, the use of the road continued for thirty years after the execution of the document without any interference from anyone. The evidence discloses that the use had begun more than ten years prior to the execution of the document and before any of the witnesses who testified in this proceeding had a proprietary interest in the properties involved. In the briefs, both parties indicate that this usage may have begun as early as 1940. From our de novo review of the record, we cannot conclude that the finding of the chancellor that an easement had been acquired by prescription was clearly erroneous.
Nor can we agree with appellants’ argument that the trial court erred in not requiring appellees to make an election between the claim of express grant and the claim of acquisition by prescription, which appellants argue are inconsistent. As the supreme court stated in Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 232, 836 S.W.2d 354 (1992):
[T]he doctrine of election of remedies applies to remedies and not to causes of action.... This is simply a prohibition against more than one recovery on inconsistent remedies and not a requirement that a plaintiff choose only one cause of action. There is no such requirement.
That portion of the decree holding that the writing was a valid conveyance of an easement is reversed. That part of the decree holding that a prescriptive easement, confined to the use made of it during the statutory period, has been established is affirmed.
Jennings, J., concurs in part and dissents in part. | [
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James R. Cooper, Judge.
The appellant in this criminal case was tried in the Bradley County Municipal Court on October 3,1990, on charges of driving while under the influence of alcohol, running a stop sign, driving left of center, failure to signal a turn, and refusing to submit to a breathalyzer test. By a municipal court judgment entered on October 24, 1990, the appellant was found not guilty of driving while under the influence of alcohol, running a stop sign, and driving left of center. The record is silent regarding the charge of failing to signal a turn. The judgment reflects that the appellant was found guilty only of refusing to submit to a breathalyzer test. The appellant appealed the municipal court judgment to the Bradley County Circuit Court, and after a non-jury trial on November 19, 1990, he was found guilty only of refusal to submit to a breathalyzer test and his driver’s license was suspended for a period of six months. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in denying his pretrial motion to dismiss because of the acquittals in municipal court, and that the trial court erred in finding that he refused to take a requested breathalyzer test. We affirm.
The record shows that Officer Gary Hibbard of the Warren Police Department issued the citations to the appellant on September 9, 1990. At trial, Officer Hibbard testified that he observed the appellant fail to stop at a stop sign; that he followed the appellant’s vehicle in his patrol car; observed the appellant turn left without a signal; and observed the appellant turn right and stop the vehicle in front of a house. Officer Hibbard did not turn on his blue lights or otherwise signal the appellant to stop. After the appellant had stopped his vehicle, Officer Hibbard approached him, questioned him, and administered field sobriety tests. When he was asked if he would walk a straight line, the appellant refused, stating that he would submit to no more tests. The appellant was then taken into custody, charged with the offenses enumerated above, and acquitted of all charges except refusing the breathalyzer test.
The appellant argues that his motion to dismiss should have been granted because the state failed to show that circumstances existed under which the appellant was deemed to have given his consent to the breathalyzer test under Ark. Code Ann. § 5-65-202 (Supp. 1991). We do not agree.
Arkansas Code Annotated, § 5-65-202(a) (Supp. 1991) provides, in pertinent part, that:
Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this state shall be deemed to have given consent, subject to the provisions of 5-65-203, to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) The person is stopped by a law enforcement officer who has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has one-tenth of one percent (0.10%) or more of alcohol in his or her blood.
We agree with the appellant’s argument that subsection (3) does not apply; the evidence does not show that the appellant was stopped by a law enforcement officer who had reasonable cause to believe that the appellant was intoxicated. Instead, as Officer Hibbard testified, he approached the appellant’s auto only to warn him about speeding and running a stop sign. Likewise, as the State concedes, subsection (2) does not apply because the appellant was not involved in an accident. However, we find that subsection (1) is applicable under the circumstances presented by the case at bar. Here, the appellant was arrested for running a stop sign, driving left of center, and failure to signal a turn, in addition to driving while intoxicated and refusing to submit to a breathalyzer test. Subsection (1) provides that a driver who is arrested for “any offense arising out of acts alleged to have been committed” while driving while intoxicated shall be deemed to have given consent to a blood alcohol test; this subsection does not, however, provide that a defendant must be found guilty of driving while intoxicated as a prerequisite to being found guilty of violating the implied consent law. We agree with the State’s argument that Gober v. State, 22 Ark. App. 121, 736 S.W.2d 18 (1987), was wrongly decided in this particular, and we overrule Gober to the extent that it holds a DWI conviction is a prerequisite to a conviction for refusing a blood alcohol test pursuant to Ark. Code Ann § 5-65-202(a)(l) (Supp. 1989). Given our view of this issue, we hold that the trial court did-not err in denying the appellant’s motion to dismiss. Accord, State v. Schaub, 3.10 Ark. 76, 832 S.W.2d 843 (1992).
We next address the appellant’s contention that the evidence is insufficient to support his conviction for refusal to take a blood alcohol test. In a criminal case, whether tried by judge or jury, we review the evidence in the light most favorable to the State, and affirm if the finding of guilt is supported by substantial evidence. Turner v. State, 24 Ark. App. 102, 749 S.W.2d 339 (1988). Substantial evidence is evidence which induces the mind to go beyond mere suspicion or conjecture, and is of sufficient force or character to compel a conclusion one way or the other with reasonable certainty. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990).
Viewed in the light most favorable to the State, the evidence shows that the appellant appeared intoxicated when approached by the police officer. The officer asked the appellant to perform a field sobriety test by holding one leg out while standing on the other foot; the appellant attempted to perform this test but lost his balance. When the officer asked the appellant to perform other field sobriety tests, the appellant refused, stating that he would not take any more tests. When asked by the police officer if he would take the gaze nystagmus test, the appellant refused and stated that “he wasn’t going to take any more tests or going to blow in any tube or anything.” Officer Hibbard testified that the appellant was asked more than once if he would like to take the breathalyzer test, and that Officer Ferrell read the appellant his rights concerning the taking of a breathalyzer test; nevertheless, the appellant refused, stating that he was not going to take any test at all. Although, as the appellant asserts, the testimony of Officer Hibbard is self-contradictory at times, the officer’s credibility is a matter which is left to the trier of fact. Manny. State, 291 Ark. 4,722 S.W.2d 266 (1986). We hold that the appellant’s conviction is supported by substantial evidence.
Finally, we note that the appellant asserts that the trial court employed an improper standard of proof in determining that the appellant refused to take a breath test. After the close of the evidence, the appellant’s attorney asserted that the “standard is a reasonable doubt,” and argued that “there was not probable case to ask him to take a breathalyzer test.” In response, the trial judge stated as follows:
THE COURT: Well, reasonable doubt, I don’t know. The code says that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent or more alcohol in the person’s blood. So reasonable doubt, this is not a reasonable doubt situation.
Our reading of the record leads us to the conclusion that, although the trial judge’s remarks are somewhat confusing, especially when taken out of context, his statement was addressed to the standard for determining whether the request for a chemical test was lawful. Arkansas Code Annotated § 5-65-205(c) (Supp. 1991) provides that a judge shall order a person’s driver’s license revoked or suspended if the judge determines, among other things, “that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated. . . .” We conclude that the trial judge correctly paraphrased the law, and we find no error.
Affirmed.
Cracraft, C.J., concurs.
Mayfield, J., dissents
Melvin Mayfield, Judge, dissenting. Before a person who drives a motor vehicle in this state is deemed to have given consent to a chemical test to determine the alcoholic content of his or her blood, one of the conditions set out in Ark. Code Ann. § 5-65-202(a) (Supp. 1991) must exist. The majority opinion concedes that the only condition that could exist in this case is the one set out in condition (1) of § 5-65-202(a). In order to reach its result, the majority has decided to overrule our prior decision in Gober v. State, 22 Ark. App. 121, 736 S.W.2d 18 (1987). That decision was based on our understanding of Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985), and was handed down on September 16,1987.The Arkansas General Assembly has met two times since that decision and has not changed condition (1) of subsection (a). It still reads today exactly like it did when Gober was decided. It has long been held that “a court’s construction of a statute becomes a part of that law.” Thompson v. Sanford, 281 Ark. 365, 370,663 S.W.2d 932,935 (1984). It has also been said that “it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result.” Independence Federal Bank v. Paine Weber, 302 Ark. 324, 331-32, 789 S.W.2d 725 (1990) (citing Thompson v. Sanford).
Therefore, I would not overrule Gober. I think that decision was correct, and I see no great injury or injustice resulting from it.
Moreover, the General Assembly apparently sees no great injury or injustice resulting from that decision. At least we know that by Act 75 of 1987, the General Assembly amended what is now Ark. Code Ann. § 5-65-202; however, it did not change condition (1) of subsection (a) of that statute. In my opinion, the failure to amend condition (1) in either of the two sessions of the legislature that have occurred since our decision in Gober strongly indicates that the Gober decision was in keeping with the intent of the legislature.
Furthermore, I think there is good reason for such a view. Under condition (2) of Ark. Code Ann. § 5-65-202(a), a person who is involved in an accident while operating or in actual physical possession of a motor vehicle in this state shall be deemed to have given consent to a blood alcohol test. The same consent is deemed to have been given under condition (3) of the statute when a law enforcement officer stops a person (who is operating or in actual physical control of a vehicle) with reasonable cause to believe that the person is intoxicated. But under condition (1) the consent to a blood alcohol test is deemed to have been given only when a “driver” is arrested for an offense arising out of acts alleged to have been committed by the driver while intoxicated.
As I understand the law as enacted by the legislature, if an officer stops a driver for a traffic violation (but not because he has reason to believe the driver is intoxicated) and discovers, after the stop, probable cause to arrest the driver for driving while intoxicated, or if an officer discovers such cause to arrest a driver after the officer has approached a motor vehicle that has been stopped at the driver’s own volition (but not because of an accident) the officer, in either situation, may arrest the driver for driving while intoxicated and may request the driver to submit to a blood alcohol test. It is obvious that if the driver is not found guilty of driving while intoxicated, he cannot be punished for driving while intoxicated, and I do not believe he can be punished for refusing to submit to a blood alcohol test. The latter proposition results from the fact that the driver of a vehicle is not, under the legislative acts of the State, deemed to have given consent to a blood alcohol test simply because he is arrested by a law enforcement officer who alleges the driver was arrested for an act committed while driving while intoxicated. The law requires, in my opinion, that the driver must have been, in fact, driving while intoxicated, or he will not be deemed to have given consent to the blood alcohol test under condition (1) of subsection (a) of the statute. To hold otherwise requires us to legislate.
This does not mean that the driver must be convicted of driving while intoxicated in order to be convicted, under subsection (a)(1) of the statute, for refusing to submit to a blood alcohol test. It does mean, however, that it must be established that the driver was, in fact, driving while intoxicated. But in the present case, the appellant has been found not guilty of driving while intoxicated. Thus, the question of whether he was, in fact, driving while intoxicated has been decided in his favor. Therefore, based upon the circumstances discussed above, I dissent from the majority opinion and would reverse appellant’s conviction.
After the above was written, but before it was handed down, the Arkansas Supreme Court decided the case of State v. Schaub, 310 Ark. 76, 832 S.W.2d 843 (1992). We then requested letter briefs from the parties for their views on Schaub’s application to the present case, and after these briefs were received this case was reconferenced. The reliance of the majority opinion upon the Schaub decision makes it necessary that I add my view of that opinion’s relation to the present case.
First, I think the majority’s reliance on Schaub is misplaced. That opinion states that the trial judge in that case read our case of Goberv. State “to stand for the broad-based proposition that in all circumstances a defendant must be convicted of DWI before he can be convicted of refusing to submit to a blood test.” The opinion in Schaub then states: “We do not read the case so broadly.” 310 Ark. at 78, 832 S.W.2d at 845. I agree that our holding in Gober should not be read so broadly, and in my view Schaub is not in conflict with this dissenting opinion.
To understand the law as it exists today, it is necessary to take a close look at Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). There, the Arkansas Supreme Court affirmed the DWI conviction of a man the police officer found asleep “behind the wheel of a car which was lodged against a building in a parking lot.” The court affirmed the DWI conviction under Ark. Stat. Ann. § 75-2503(a) (Supp. 1985). That statute is now codified as Ark. Code Ann. § 5-65-103 (1987). It reads now just like it did when Roberts v. State was decided and clearly states that it is unlawful and punishable as provided in the act for any person to operate or be in actual physical control of a motor vehicle who (a) is intoxicated, or (b) has one-tenth of one percent (0.10 %) or more by weight of alcohol in his blood. Applying that statute, the court in Roberts affirmed the DWI conviction of that appellant who “smelled of intoxicants, was unsteady on his feet, spoke in a slurred manner, and had to be ‘wrestled’ from his position behind the steering wheel.” 287 Ark. at 453. However, the court in Roberts reversed the appellant’s conviction for refusing to take a blood test because neither of the three conditions of subsection (a) of Ark. Stat. Ann. § 75-1045 (Supp. 1985) applied. Id. at 454. Those conditions are now (after the amendment by Act 75 of 1987) codified in Ark. Code Ann. § 5-65-202 (Supp. 1991).
The obvious purpose of Act 75 of 1987, and so stated in its emergency clause, was to remedy what the opinion in Roberts said “may have been a mere legislative oversight to have failed to include in the implied consent provisions reference to persons found in physical control of vehicles while intoxicated.” 287 Ark. at 454. Thus Act 75 of 1987 states that it amends subsection (a) of Ark. Stat. Ann § 75-1045 (now Ark. Code Ann. § 5-65-202(a) (Supp. 1991)). The amendment added the words “or in actual physical control of a motor vehicle” to subsection (a) and to conditions (2) and (3) but did not add those words or make any change at all to the language of condition (1) of subsection (a). That is the condition involved in this case, and the failure of the legislature to change that condition in the two sessions since 1987 strongly indicates that our Gober decision is in keeping with legislative intent. Just as the Arkansas Supreme Court refused to legislate in Roberts, I think the Court of Appeals should refuse to legislate in the present case.
I also want to comment upon the last two paragraphs of the majority opinion. The appellant’s second point argued that the State did not prove beyond a reasonable doubt that the appellant refused to take the breathalyzer test and that the trial court did not apply that standard to the determination of that issue. While I would not reverse on appellant’s second point, I do want to point out that the first point (upon which I would reverse) is not concerned with whether “the law enforcement officer had reasonable cause to believe” the appellant was driving while intoxicated or with one-tenth of one percent (0.10 %) or more of alcohol in his blood. This provision in Ark. Code Ann. § 5-65-205(c) (Supp. 1991) is referred to in the majority opinion. That, however, is not the issue in the appellant’s first point. Subsection (a) of Ark. Code Ann. § 5-65-205 provides that “if a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in § 5-65-202, none shall be given.” The section goes on to add that under these circumstances the person’s driver’s license shall be seized by the officer who shall give the person a temporary driving permit, and section (c) provides that if the judge determines the officer had “reasonable cause to believe” the person was driving while intoxicated or with 0.10% or more alcohol in the blood then the penalties for refusing to take the test would apply.
It is clear, however, that Ark. Code Ann. § 5-65-202 provides three conditions only upon which consent for a chemical test for blood alcohol shall be implied. This case is concerned with condition (1) only. The reasonable belief of the officer referred to in Ark. Code Ann. § 5-65-205(c) is a requirement that is in addition to the three conditions for implied consent set out in § 5-65-202.
Finally, I note that Ark. Code Ann. § 5-65-203 (Supp. 1991) also provides that the chemical tests shall be administered at the direction of an officer “having reasonable cause” to believe that the person to be tested was driving or in actual physical control of a motor vehicle while intoxicated or while having 0.10% or more of alcohol in the person’s blood. This section simply codifies the last paragraph of the first section of Act 75 of 1987. That paragraph begins with the words “Such chemical test or tests” and clearly applies to the tests which a person consents to when he drives or is in actual physical control of a motor vehicle in this State. Thus it is obvious that these are the same tests referred to in Ark. Code Ann. § 5-65-203(a) (Supp. 1991). The “having reasonable cause to believe” clause which follows the reference to “chemical test or tests” only adds an additional requirement to conditions (1) (2) and (3) set out in the three implied consent conditions of Act 75 of 1987 (now codified as Ark. Code Ann. § 5-65-202 (Supp. 1991)).
In summary, I believe that condition (1) of § 5-65-202(a) (which is the only condition relied upon by the majority opinion in this case) does not apply to impose upon the appellant in this case implied consent for a blood alcohol test. Thus, the refusal to take such a test was not a violation of Ark. Code Ann. § 5-65-205 (Supp. 1991). | [
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James R. Cooper, Judge.
The claimant in this workers’ compensation case sustained two successive permanent injuries in the employ of the appellee, Whirlpool Corporation. The claimant’s first injury took place in 1979, and resulted in payment of $5,174.26 in permanent partial disability benefits. The claimant returned to work at Whirlpool and was continuously employed there until he suffered a second compensable injury in 1985, which resulted in additional permanent anatomical impairment and a finding of permanent total disability. Subsequently, a dispute arose between the appellant Trust Fund and the employer concerning the employer’s assertion that it was entitled to take credit for the $5,174.26 paid to the claimant for permanent partial disability arising from the 1979 injury. The Commission concluded that the employer was entitled to credit for those permanent partial disability payments. From that decision, comes this appeal.
For reversal, the Trust Fund contends that the Commission erred in allowing the appellee employer credit for the permanent partial disability benefits paid for the 1979 injury. We affirm.
The Commission concluded that the employer was entitled to credit for the prior payment of permanent partial disability benefits pursuant to Ark. Stat. Ann. § 81-1313(f)(1) (Repl. 1976), which provides that:
(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
(1) If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability as provided in Section 10(a) [§ 81-1310] of this Act.
In determining when Fifty Thousand Dollars ($50,000) in weekly benefits has been paid for permanent total disability awarded under Section 10(a) [§ 81-1310] of this Act, the weekly benefits paid for the prior injury shall be added to the weekly benefits paid for the subsequent injury. (Emphasis supplied).
The appellant argues that Ark. Stat. Ann. § 81-1313 (f) (1) was superseded by Act 290 of 19 81, which established the Second Injury Fund. Specifically, the appellant asserts that § 81-1313 (f)(1) was superseded by the language in Act 290 providing that:
Commencing January 1, 1981, all cases of permanent disability or impairment where there has been previous disability or impairment shall be compensated as herein provided.
Ark. Stat. Ann. § 81-1313(i) (now codified at Ark. Code Ann. § 11-9-525(b)(l) (1987)). However, the Arkansas Supreme Court has held that Act 290 did not repeal Ark. Stat. Ann. § 81-1313(f)(1) either specifically or by implication. Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986). The Court held that, because the claimant in Riceland was permanently and totally disabled, and because both injuries occurred while the claimant was in Riceland’s employment, Riceland, rather than the Second Injury Fund, was responsible for all the compensation and benefits due the claimant. Id. at 532. The Supreme Court reached this conclusion by reading the two statutes together; after so construing the statutes, the Court reconciled them by stating that:
If successive injuries in the same employment cause total and permanent disability the employer or his insurance carrier is responsible to the employee for all benefits. If the previous disability or impairment did not arise out of the employment by the same employer, the Second Injury Fund must pay the benefits.
Riceland Foods, Inc., supra, at 532.
Moreover, it is clear that Ark. Stat. Ann. § 81-1313(f)(1) was not superseded by Act 290 with respect to cases subsequent to January 1, 1981, because the claimant’s injury in the Supreme Court’s Riceland case occurred in March 1981. Second Injury Fund v. Riceland Foods, Inc., 17 Ark. App. 104,704 S.W.2d 635 (1986) (aff'd sub nom Riceland Foods, Inc. v. Second Injury Fund, supra).
Finally, it should be noted that Ark. Stat. Ann. § 81-1313(f)(1) was not included in the Arkansas Code of 1987. Section 1-2-103 of the Code repealed “[a] 11 acts, codes, and statutes, and all parts of them and all amendments to them of a general and permanent nature in effect on December 31, 1987 . . . .” Specifically excepted from this repeal, however, were statutes omitted “improperly or erroneously” from the Code. Ark. Code Ann. § 1-2-103(a)(2) (1987). In the absence of any specific repeal of Ark. Stat. Ann. § 81-1313(f)(1), and given its continued validity under the Riceland cases cited supra, we hold that Ark. Code Ann. § 81-1313(f)(1) was improperly or erroneously omitted from the Code, and therefore remains in effect pursuant to Ark. Code Ann. § 1-2-103(b) (1987).
Next, the appellant contends that § 1313(f) cannot apply because it imposes on the employer the duty to pay only $50,000 in weekly benefits; here, however, the employer has stipulated that it is liable for $75,000 in weekly benefits. The appellant argues that this stipulation by the employer is a “tacit admission” that § 81-1313(i) applies. We do not agree.
Although the appellee did concede that it was liable for $75,000 in weekly benefits, that figure was derived not from subsection (a), but instead from Ark. Code Ann. § 1 l-9-502(b) (1987), which provides that:
(b)(1) For injuries occurring on and after March 1, 1981, the first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this chapter.
(2) An employee or dependent of an employee who receives a total of seventy-five thousand dollars ($75,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this chapter, but all benefits in excess of seventy-five thousand dollars ($75,000) shall be payable from the Death and Permanent Total Disability Trust Fund.
The question of whether the $50,000 limit on an employer’s liability provided for in § 81-1313 (f) (1) has been superseded by the $75,000 limit provided for in Ark. Code Ann. § 11-9-502 is not properly before us in this case; the employer stipulated to its liability to the extent of $75,000 before the Commission; this stipulation, as reflected in the Commission’s opinion, was strictly to the advantage of the appellant, who will not be heard to object to it for the first time on appeal. See Kelley v. Kelley, 253 Ark. 378, 486 S.W.2d 5 (1972).
Although the issue is therefore not properly before us, we nevertheless note that we believe that the Commission’s decision was correct. In its opinion, the Commission cited its prior opinion in Wennberg v. Sparks Regional Medical Center, Ark. W. Comp. Commn. D109279, D40586 (op. del. February 2,1989), where it decided the precise question which is presented by the case at bar:
Notwithstanding the clear implication of subsection 502(b)(2), the employer insists that its own liability ceases after $50,000 has been paid, relying on the references to that amount in former Ark. Stat. Ann. § 81-1313(f)(1). That statute was not carried forward into the new Code, but it is still effective to impose liability on the employer (rather than the Second Injury Fund) where disability results from successive injuries in the same employment. Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986). It is patently obvious to us that the General Assembly merely failed to amend § 13(f)(1) to conform with §502 through oversight and did not intentionally retain the employer’s maximum liability at $50,000. If an employer stopped paying after $50,000 in benefits, but the Bank Fund became liable only after $75,000 in benefits had been paid, a claimant would never collect anything from the Bank Fund. That would be an absurd result. Common sense tells us that the legislature intended a reasonable result and one which allows a worker to receive all the benefits to which he is entitled. We also note that §502(b)(2) is immediately preceded by §502(b)(l), which states that, ‘[T]he first seventy-five thousand dollars ($75,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier. . . .’Notwithstanding the omission to make the disputed section consistent, the legislative intent that the employer shall pay the first $75,000 of permanent total disability benefits is manifest and needs no further discussion.
We think that the Commission correctly concluded that the $75,000 limit applies to cases brought under Ark. Stat. Ann. § 81-1313(f)(1). Given the Supreme Court’s holding in Riceland, supra, it is clear that § 81-1313 (f) (1) remains in effect. Although the provision for a $75,000 limit on an employer’s liability in Ark. Code Ann. § 1 1-9-502(b) creates an ambiguity, such conflicts and ambiguities in the statutes must be resolved in favor of the claimant due to the remedial nature of the legislation. Noggle v. Arkansas Valley Elect. Coop., 31 Ark. App. 104, 788 S.W.2d 497 (1990). The Commission’s opinion in Wennberg, supra, does so in a manner that ensures claimants access to the Bank Fund once the employer’s limits of liability have been reached.
The appellant next contends that there is no substantial evidence to support the Commission’s finding that the claimant’s 1979 injury and 1985 injury combined to result in permanent total disability. We do not address this issue because the appellant has failed to provide us with an abstract of the medical evidence it relies upon for reversal. Therefore, we cannot determine the sufficiency of the evidence without going to the record. We will not do so to determine whether reversible error occurred. See Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990).
Finally, the appellant contends that permanent partial disability cannot be credited against the employer’s obligation under Ark. Code Ann. § ll-9-502(b)(l) because that statute permits credit only for benefits for “death or permanent total disability.” (Emphasis supplied). However, we think that the applicable provision regarding benefits which may be credited is found in Ark. Stat. Ann. § 81-1313(f)(1), which permits the weekly benefits paid for the prior injury to be credited in determining whether the employer’s statutory limit of liability has been met. The “weekly benefits” referred to in the statute do not include temporary disability payments, and are limited to benefits for permanent disability. See Sparks Regional Med. Center v. Death and Permanent Total Disability Bank Fund, 22 Ark. App. 204, 737 S.W.2d 463 (1987). Given that only permanent disability benefits may be credited, we must hold that §81-1313(f)(1) permits credit for permanent partial disability payments. To hold otherwise would be to reach the absurd result of allowing credit only for benefits paid for a permanent total disability which is followed by continued employment by the same employer and a second injury resulting in another permanent total disability. The legislature will not be presumed to have done a vain or useless thing. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973).
Affirmed.
Jennings, J., agrees.
Rogers, J., concurs | [
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Elizabeth W. Danielson, Judge.
Appellant Charles Elam, Jr., appeals from an order in which the Sebastian County Chancery Court granted appellee Helen Elam’s petition for divorce and awarded her custody of the parties’ minor child, Kenneth Elam. Appellant argues that the court should not have exercised jurisdiction over the child because a Tennessee court had previously entered an order placing guardianship of the child with his paternal grandparents and because there was insufficient service of process on appellant to give the court jurisdiction to award custody. We agree that the court should have declined to exercise jurisdiction over the child custody matter and reverse and remand.
The child of the parties was born in May of 1987. The parties apparently began experiencing financial difficulties in 1988 and agreed that it would be best for Kenneth to live with his paternal grandparents. In July of 1988 the grandparents filed a petition for guardianship of Kenneth, which stated that Mr. and Mrs. Charles Elam, Jr., (the parties to this appeal) were in agreement that Mr. and Mrs. Charles Elam, Sr., (the grandparents) maintain custody of Kenneth Elam. On July 28, 1988, an order was entered by the juvenile court of Obion County, Tennessee, appointing the grandparents, Charles and Oma Jean Elam, guardians of Kenneth.
On August 28,1988, Helen Elam filed a petition for divorce in the Chancery Court of Sebastian County, Arkansas. In this petition it was stated that the parties’ minor child was currently residing with his paternal grandparents and that it was Helen Elam’s desire that Kenneth remain with his grandparents. Apparently appellee subsequently amended her petition to request custody of the child, though such amendment is not included in the record. On October 27, 1989, the paternal grandparents filed in Obion County, Tennessee, a petition for adoption of Kenneth. In the divorce decree filed January 10, 1990, the Sebastian County Chancery Court granted appellee’s petition for divorce and awarded her custody of the parties’ son Kenneth.
Appellant argues that the Sebastian County Chancery Court should have declined to exercise jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), which is codified at Ark. Code Ann. § 9-13-201 et seq. (1987). Arkansas Code Annotated § 9-13-203 provides as follows:
(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one (1) contestant, have a significant connection with this state and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; . . .
“Home state” is defined as the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. Ark. Code Ann. § 9-13-202(5) (1987).
Additionally, the courts of this state are required to recognize and enforce an initial or modification decree of a court of another state which has assumed jurisdiction under statutory provisions substantially in accordance with those of the UCCJA or under factual circumstances meeting the jurisdictional stan dards of the UCCJA. Ark. Code Ann. § 9-13-213 (1987). We note that Tennessee has adopted the UCCJA. See Tenn. Code Ann. § 36-6-201 et seq. (Repl. 1991).
Some of the general purposes of the UCCJA are to avoid jurisdictional competition and conflict with courts of other states in child custody matters; promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the best interest of the child; assure that litigation concerning the custody of the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships are most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; discourage continuing controversies over child custody in the interest of greater stability for the child; to facilitate the enforcement of custody decrees of other states; and to promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.
The record indicates that the paternal grandparents were granted legal guardianship of Kenneth in July of 1988, and that Kenneth has been residing with them in Tennessee continuously since that time. At the time the court exercised jurisdiction over the child, the Tennessee court had already assumed jurisdiction and entered the guardianship order. Considering the provisions and purposes of the UCCJA and the circumstances of this case, we find that the Sebastian County court erroneously exercised jurisdiction over the minor, Kenneth Elam.
Appellee argues that she cannot be bound by the Tennessee guardianship decree since she was not a party to that action. However, the record shows that appellee’s notarized signature appears on the petition for guardianship in Tennessee and we find nothing in the record to indicate that she has ever taken any steps to challenge the order granting guardianship. In fact, in her petition for divorce, she recognizes the fact that Kenneth was residing with his grandparents and stated it was her desire that he remain with them.
Since we have held that the Arkansas court should not have exercised jurisdiction over the custody matter under the provisions of the UCCJA, we need not address appellant’s second point on appeal concerning the sufficiency of the notice given him. The case is reversed and remanded for proceedings consistent with the Uniform Child Custody Jurisdiction Act.
Reversed and remanded.
Cooper and Rogers, JJ., agree. | [
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Elizabeth W. Danielson, Judge.
Appellant entered a contingent plea of guilty to manufacturing a controlled substance, methamphetamine, with intent to deliver, reserving the right to appeal the trial court’s denial of his motion to suppress. He was sentenced to six years in the Arkansas Department of Correction and fined $100. We affirm.
Since sufficiency of the evidence is not argued, we will give a summation of the facts. An investigator working for the 18th Judicial District East Drug Task Force had a confidential informant purchase cocaine from appellant during the third week of February 1991. The informant was provided with recorded currency and was under the visual surveillance of the investigator when he entered and exited appellant’s residence. The substance purchased from appellant was immediately relinquished to the investigator and was identified as cocaine. The informant observed additional quantities of the substance inside appellant’s residence which were represented to be cocaine. This information along with the belief that appellant was involved in heavy trafficking of controlled substances prompted the investigator to file an affidavit for a warrant to search appellant’s home. The affidavit requested permission to execute the warrant at any time day or night so as to prevent the further loss of evidence. The judicial officer issuing the warrant found there was probable cause to search appellant’s home for the reasons set forth in the affidavit. The search of appellant’s home was executed at 9:40 p.m., at which time drugs and drug paraphernalia were seized.
Appellant contends that it was error for the trial court to deny his motion to suppress the evidence obtained from his home. Specifically, appellant argues that it was unnecessary to execute the search at nighttime. Arkansas Rules of Criminal Procedure 13.2(c) provides that:
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
Our cases have consistently held that a factual basis must be stated in the affidavit, or in sworn testimony, before a nighttime search warrant may be validly issued. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992). In Coleman, the supreme court upheld the trial court’s finding that a nighttime search warrant had been validly issued. The appellant in Coleman argued, as does the appellant in this case, that the affidavit contained only conclusory, not factual, statements. There the affiant specified that after dark on that night an informant had purchased cocaine from appellant, that the purchase was made inside appellant’s residence, that the cocaine purchased was packaged in a clear plastic bag, that cocaine was being concealed at the residence, that appellant was in possession of and distributing cocaine from the residence, and that drugs located there were packaged and maintained in a manner that their destruction or removal could be easily accomplished. The court found that even though the last phrase was a computer generated phrase and there were several additional facts the affiant could have specified but did not, he did set out a number of pertinent facts from which the issuing judge could reasonably believe at that time there were drugs inside appellant’s residence that could easily be removed or destroyed.
The affidavit in this case sets forth information as to the presence of cocaine and drug paraphernalia, such as scales, pipes, baggies, and cutting agents, in appellant’s home; the presence of records, documents, and U.S. currency believed to be associated with the distribution of controlled substances; that appellant had sold cocaine in his home to a reliable confidential informant; that the confidential informant had observed additional quantities of cocaine in addition to that purchased by the informant; that appellant was believed to be involved in heavy trafficking of the controlled substance; and that permission to execute a search of appellant’s home at any time of the day or night was requested to prevent the further loss of evidence. The issuing judge stated in the search warrant that he was satisfied that, based on all the information in the affidavit, there was probable cause to issue a search warrant that could be executed at any time, day or night.
In reviewing a trial court’s ruling on a motion to suppress because of an alleged insufficiency of the affidavit, we make an independent determination based upon the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). Here, as in Coleman, the affiant set out a number of pertinent facts regarding the presence of drugs and the possibility of their removal or destruction. The issuing judge clearly stated that he relied on this information in deciding the warrant could be executed at anytime. We cannot say the trial court erred in its denial of appellant’s motion to suppress.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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John E. Jennings, Judge.
On May 14, 1990, Toby Busby filed a suit seeking a divorce from Paul Busby, her husband of twenty-seven years. On May 16,1991, the St. Francis Chancery Court entered a decree of divorce which divided the property of the parties and awarded Mrs. Busby alimony of $35.00 per week. Mr. Busby appeals, arguing that the court erred in awarding his wife an interest in land he acquired by inheritance during the marriage; in awarding her alimony; and in entering an order nunc pro tunc for the payment of temporary alimony pending the hearing on the merits. We must reverse on the first point.
The land in issue is a 110 acre tract that Mr. Busby inherited from his parents long after the parties married. Its estimated value is $80,000.00. Apparently based primarily on evidence that Mrs. Busby helped in refinancing a loan on the property, the court awarded her an equitable interest in the property in the amount of $5,500.00.
Mr. Busby argues that the chancellor was without authority to award his wife an interest in property acquired by inheritance during the marriage, relying on Hale v. Hale, 307 Ark. 546, 822 S.W.2d 836 (1992). We agree that Hale controls. There, the court said:
The appellant is correct that Ark. Code Ann. § 9-12-315(a)(2) provides for an equitable division of non-marital property given prior to marriage but does not make the same provision for gift property received during marriage. Were we to hold that the statute authorized a chancellor to divide non-marital gift property, we would be adding words to the statute that simply are not there. In prior cases, we have specifically refused to expand the property-division statute judicially to authorize the chancellor to divide non-marital property acquired by gift during marriage. Rather, we have limited the discretion of the chancellor under the statute to the division of property acquired prior to marriage, as the statute provides. See Williford v. Williford, 280 Ark. 71, 655 S.W.2d 398 (1983); see also Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 443 (1990); Yockey v. Yockey, 25 Ark. App. 321, 758 S.W.2d 421 (1988). We have previously held that property received by descent, apparently during marriage, is not subject to division in a divorce action. See Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985).
Hale, 307 Ark. at 551, 822 S.W.2d at 839.
Under the holding in Hale the 110 acre tract inherited by Mr. Busby during the marriage was not subject to division by the chancellor.
A hearing on the issue of temporary alimony was held on May 31, 1990. On June 1, 1990, the chancellor wrote to the parties:
Gentlemen: As you know by now, I did not return from Cross County today in time to take the testimony of Mr. Hood, the CPA of Mr. Busby. As I stated yesterday, I would try to take his testimony this afternoon so that I could decide the issue of temporary support for Mrs. Busby. I also stated that if I could not take this testimony, I would rule on the issue until such time as we could take his testimony. I will have another day of regular court in St. Francis County on June 21st. At that time, we will take Mr. Hood’s testimony. Until that time, it is my opinion that Mr. Busby should pay Mrs. Busby $75.00 per week.
In the final decree the special chancellor who heard the case on the merits stated:
By letter dated June 1, 1990, Judge Bentley E. Story directed the Defendant pay to the Plaintiff the sum of $75.00 per week, until he had the opportunity to hear additional testimony, which was to have been on June 21st. The Court’s opinion was never specifically reduced to an Order. Subsequent to the Court’s opinion the Defendant apparently made some payment of the amount directed by Judge Story’s letter. It is the determination of the Court that the judgment of alimony/support directed by Judge Story’s letter of June 1,1990, is entered nunc pro tunc by the Court.
Judgments not entered in a record book or noted on a docket are not void but may be entered nunc pro tunc, if it is clearly shown that the judgment of the court has been announced in open court or otherwise actually rendered. O’Dell v. O’Dell, 247 Ark. 635, 447 S.W.2d 330 (1969). Strict formality in language is not required; a judgment is to be tested by substance not form. Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). Mr. Busby’s argument is that the chancellor’s letter of June 1 should be interpreted to mean that the order for temporary alimony would expire on June 21,1990, whether or not a hearing was held on that date. The special chancellor interpreted Judge Story’s letter to mean that temporary alimony should be paid until such time as a subsequent hearing might be held, and we cannot say that that interpretation was wrong.
Finally, Mr. Busby argues that it was error to require him to pay $35.00 per week in alimony. An award of alimony lies within the sound discretion of the chancellor, whose decision will not be reversed absent a clear abuse of that discretion. Aldridge v. Aldredge, 28 Ark. App. 175,773 S.W.2d 103 (1989). In the case at bar Mrs. Busby has bone cancer. By the time of the hearing her employment with Farm Credit Services had been terminated because of her illness. She received $673.00 per month in social security and $560.00 per month in private insurance benefits. Her medical expenses have been and will be substantial, although many of her expenses will be covered by insurance.
Mr. Busby is a partner with his brother in a trucking business. By the time of the last hearing no tax return had been filed for the year 1989, but in 1988 the partnership had a gross income of $186,000.00. Mr. Busby’s accountant testified that appellant netted $140.00 per week from the business.
The argument for reversal focuses on a comparison of the parties’ net income as reflected in the testimony. This, however, is not the only factor which the court was entitled to consider. The court could also consider the earning ability and capacity of each party, the property each received in the divorce, and Mrs. Busby’s ill health. See Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990); Franklinv. Franklin, 25 Ark. App. 287, 758 S.W.2d 7 (1988); Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). On the facts of this case we cannot say thatthe chancellor abused his discretion in awarding Mrs. Busby $35.00 per week in alimony.
That portion of the decree which awards Mrs. Busby an equitable interest in land inherited by her husband during the marriage is reversed. In all other respects the decree of the chancellor is affirmed.
Reversed in part and affirmed in part.
Danielson and Mayfield, JJ., agree. | [
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Per Curiam.
Appellee’s motion for attorney’s fee is granted. See Cagel Fabricating and Steel, Inc. v. Patterson, 37 Ark. App. 85, 827 S.W.2d 661 (1991). | [
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Melvin Mayfield, Judge.
This is an appeal from a summary judgment. On October 5,1989, appellant Michael Rea and appellee James Fletcher were employed by Rapistan Corporation on a construction site in Searcy, Arkansas, when appellant, who was being given a ride to the construction site, fell from the tailgate of Fletcher’s vehicle and injured his spine. Appellant filed a complaint alleging his injury occurred because of Fletcher’s careless and negligent acts.
Appellee Fletcher filed a motion for summary judgment contending an employer is required to provide a safe place to work for its employees and, under the exclusive remedy doctrine of the Arkansas Workers’ Compensation Law, an employee who receives workers’ compensation benefits for an injury during the course and scope of his work may not bring suit against his employer for injuries allegedly arising from unsafe working conditions.
Attached to the motion was Fletcher’s affidavit stating that on October 5, 1989, he was employed as a millwright with Rapistan Corporation and that Rea was also employed by Rapistan. Persons working at the construction site were required to park their vehicles at a parking lot approximately one-half mile away. The corporation provided transportation from the lot to the site on a trailer pulled by one of two corporate pickup trucks, one of which was routinely driven by Fletcher’s foreman Bill Beede. Employees were driven between the parking lot and job site in the morning, at lunch, and after work.
On the day of the incident, Beede told Fletcher to get his truck and bring it to the job site in case transportation was needed because neither of the corporate trucks was available and to use his truck to transport employees to the parking lot at lunch if the corporate trucks were still unavailable. Another Rapistan employee drove Fletcher to the parking lot in a corporate golf cart to get his truck and Fletcher drove his truck to the job site. At lunch time the corporate trucks were still unavailable. As Fletcher was using his truck to transport Beede and other employees, appellant fell from the truck.
Appellant’s response to the motion stated Fletcher was not his supervisor; was not in any supervisory capacity at the time of his acts; was not under the direct control of a supervisor; and his acts were a breach of personal duties Fletcher owed appellant.
The trial court granted appellee’s motion for summary judgment on the basis that an employer is required to provide its employees a safe place to work; that the employee’s parking lot and the area between the parking lot and the construction site where the plaintiff was allegedly injured were part of plaintiffs work place; that plaintiffs employer, Rapistan Construction Company, had a duty to maintain a safe place to work in that area; that absent willful or intentional misconduct, non-supervisory employees acting within the scope of their employment are also protected by the same tort immunity afforded their employers by the Arkansas Workers’ Compensation Act; and that Fletcher was performing job-related activity at the express direction of his supervisor, and was acting within the scope of his employment when the alleged unintentional negligent act occurred.
Appellant contends that Fletcher’s recklessness presents a question of fact. Appellant cites King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959), and argues that case authorized third-party actions by one employee against a coemployee and that under a statute like ours a negligent coemployee is regarded as a third person.
The appellee argues the sole issue before the trial court was whether, as a matter of law, appellee’s employment status entitled him to tort immunity. Appellee also argues that appellant produced no specific facts regarding appellee’s alleged recklessness.
In Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), our supreme court stated:
We denied tort immunity in Kingv. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959) for two fellow employees, a truck driver and a laborer, who negligently backed over the decedent employee with a truck. We held that for the purposes of Ark. Stat. Ann. § 81-1340 (Repl. 1976) of the Worker’s Compensation Act, an employee’s claim against this employer does not affect his right to sue a negligent coemployee. However, in Nealy. Oliver, 246 Ark. 377,438 S.W.2d 313 (1969) we stated that the duty to provide a safe place to work is that of the employer and cannot be delegated to an employee.
Recently, in Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), we held that supervisory employees are immune from suit for negligence in failing to provide a safe place to work. See Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987). In Simmons we stated, “Since an employer is immune under the Worker’s Compensation statutes from suite for a negligent failure to provide a safe place to work, the same immunity should protect supervisory employees when their general duties involve the overseeing and discharging of that same responsibility.”
Based upon holdings in Simmons and Fore, we now conclude that supervisory as well as non-supervisory employees are immune from suit for negligence in failing to provide a safe place to work.
294 Ark. at 6.
In the instant case, appellee was simply a fellow employee of the appellant. It is not disputed that the employer required employees to park in a parking lot some distance from the job site; that the employer regularly furnished transportation from the parking lot to the job site using the employer’s vehicles; that, on the day the incident occurred, the employer’s vehicles were unavailable; that appellee was instructed by his supervisor to bring his pickup to the construction site to be used as transportation for other employees in case the employer’s vehicles were unavailable; that at lunch time the employer’s vehicles were still unavailable; and that the incident occurred as appellee was using his pickup at noon to transport fellow employees to the parking lot.
Even assuming appellee was somehow negligent in driving his vehicle, he is immune from suit because under the facts of this case providing transportation from the employer-designated parking area to the job site involves the duty to provide a safe place to work.
Appellant has also argued there is a question of fact as to appellee’s negligence and that a willful and intentional injury is an exception to the Worker’s Compensation Act. Sontagv. Orbit Value Co., Inc., 283 Ark. 191, 672 S.W.2d 50 (1984). The problem with appellant’s argument is his complaint alleged only “careless and negligent acts” and that appellee drove in a “reckless” manner. And his affidavit which was attached to his response to appellee’s motion for summary judgment states only that appellee “made a jackrabbit start, causing the truck to lurch forward.” In Sontag the court held when the employee is able to show “actual, specific and deliberate intent” he may avoid the exclusive remedy under the Workers’ Compensation Law. Since there are no allegations of “willful and intentional injury” appellant cannot avoid the exclusive remedy under the Workers’ Compensation Law and maintain a tort action.
The trial court did not err in granting appellee’s motion for summary judgment.
Affirmed.
Jennings and Cooper, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Eagle Safe Corporation appeals from an order of the Workers’ Compensation Commission awarding death benefits to the minor child of John Egan, deceased. Appellant contends that the findings and decision of the Commission are not supported by substantial evidence. We find no error and affirm.
When the sufficiency of the evidence is challenged in workers’ compensation cases, this court is required to review the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative value in favor of those findings. The Commission’s decision will be upheld if supported by substantial evidence. Substantial evidence has been defined as more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it is evidence of such force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. The issue is not whether the evidence would support a finding contrary to the one made, but whether it supports the finding made by the Commission. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988).
When the evidence is viewed in this light, it discloses that on Friday, March 6, 1987, John Egan sustained a painful injury to his right foot. Dr. Leopold H. Garbutt testified; that, although Egan was in great pain, he could not perform corrective surgery on the date of the injury because of the swelling. The surgery was not scheduled, therefore, until the following Monday morning. The doctor prescribed Empirin #4, a pain killer containing codeine, and instructed Egan to take one capsule every four hours. Although Egan was cautioned against ingesting any alcohol or other drugs while taking the Empirin, he was not advised of the danger of taking more than four capsules a day. There was evidence that he was in intense pain over the weekend. He was unable to sleep, and the pain seemed to be worse on Sunday. On Monday morning, Egan could not be awakened. He was taken to the hospital and subsequently pronounced dead. There was testimony that Egan had not been depressed or otherwise unhappy, and the witnesses knew of no reason why he would have taken his own life. Although the number of pills in the prescription bottle was subject to question, it was clear from the evidence that Egan had ingested a number significantly in excess of the number that should have been taken had the doctor’s instructions been followed.
An autopsy was performed by Dr. Fahmy Malak, who testified without objection that “in view of the presence of the injury to the right foot with fracture of the metatarsal bone, in my opinion, the pain killer Empirin #4 accidentally caused [Egan’s] death.” Dr. Malak’s opinion that the overdose was accidental was based on his finding “only a minimal” amount of codeine residue in Egan’s stomach. Malak stated that there was no evidence that Egan had taken one massive dose. Malak stated that his findings were more indicative of a reasonable response to pain by the decedent.
The Commission found that there was a causal connection between Egan’s death and the work-related injury to his foot. The Commission also found that the overdose of the prescribed drug was not such an intentional act as would constitute an independent intervening cause. The Commission concluded as follows:
To deny death benefits in this case, we would have to find that decedent acted unreasonably in taking the medication and intended to overdose. There is simply insufficient evidence to support such a finding. Based on the lack of a credible explanation as to why [decedent] would intentionally overdose, or why decedent would take excessive amounts of the medication (other than due to pain) plus Dr. Malak’s opinion that claimant did not intentionally overdose or necessarily act unreasonably, we find that claimant has proven by a preponderance of the evidence that decedent’s death was causally related to the compen-sable injury.
In awarding benefits, the Commission relied on our decision in Preway, Inc. v. Davis, 22 Ark. App. 132, 736 S.W.2d 21 (1987). There, the worker sustained a compensable back injury for which additional medical treatment was necessary. While en route from her home in Paragould to her doctor’s office in Memphis, Tennessee, she sustained a broken ankle in an automobile accident. In upholding the Commission’s determination that the ankle injury was compensable, we applied the concept of “quasi-course of employment” discussed in 1 Larson, Workmen’s Compensation Law, § 13.11(d) (1985). The concept includes as compensable those injuries resulting from activities undertaken by the employee following a compensable injury which, although the activities take place outside the time and space limits of the workplace, are nevertheless related to the employment in the sense that they are necessary or reasonable activities undertaken only because of the compensable injury. We also held in Preway that when an injury arises from such an activity, the chain of causation should not be broken by mere negligence in the performance of that activity, but only by intentional conduct that may be regarded as expressly or impliedly prohibited by the employer. See 1 Larson, § 13.11(d).
Although the taking of the pills in this case was not directly connected with Egan’s employment, it was related to his compensable injury in that the doctor had prescribed the medica tion as part of the treatment for his work-related injury. From our review of the record, we cannot conclude that the Commission’s finding of a causal connection is not supported by substantial evidence.
Appellant’s argument that the evidence is insufficient to support the Commission’s finding that the overdose was not an intentional act on the part of the decedent is also without merit. It was not necessary for appellee to prove by direct evidence that the death was accidental. A person’s intent ordinarily cannot be proven by direct evidence, but may be established by circumstantial evidence aided by any legitimate inferences that may arise from it. Moreover, the Commission’s finding in this case is aided by the statutory presumption that an injury is not occasioned by the willful intention of the employee. See Ark. Code Ann. § 11-9-707(3) (1987). While this presumption is a rebuttable one, the issue of whether it was overcome by the evidence was a question of fact for the Commission to determine. We cannot conclude that the Commission’s finding is not supported by substantial evidence.
Affirmed.
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Smith, J.
Atkins and wife recovered a verdict and judgment for $1,200 on account of injuries sustained by the female plaintiff in alighting from one of the defendant’s trains. The answer denied negligence on the part of' the company’s servants, and alleged that the plaintiff was-guilty of contributory negligence.
The object of the appeal being to test the correctness of the instructions that were given and refused, we state.so much of the evidence as is necessary to show their relevancy.
Mrs. Atkins was a passenger bound for Knoxville, a station on the defendant’s road, which the train reached, in daylight, twenty minutes late. The testimony conflicted as to the length of the stop made. Some of the witnesses stated that the train barely came to a halt, and immediately proceeded on its way. The trainmen and others in the employ of the defendant deposed that the stop was •sufficient to enable passengers to alight in safety — say from thirty seconds to two minutes. As soon as the train became stationary Mrs. Atkins left her seat and went to the platform of the car. One witness swore that she hesitated, and appeared to be looking out for friends to meet her, and acted so irresolutely as to produce the impression, in the mind of the witness, that it was not her intention to debark at the station. She stated, however, that she lost no time, but when she reached the platform the train had started again. All the witnesses agree that it was then moving very slowly, having gone only a few feet. Mrs. Atkins was encumbered with a heavy valise, and attempted to step from the car platform to the station platform adjacent. She fell and sustained serious injuries.' Her age was fifty-eight years, and she says that she was as active as persons of that age usually are. A merchant testified that she was in his store about five months before that, and was so feeble that she had to remain seated jvhile he waited upon her. Another witness said that he had lived neighbor to her two years ago, and she was in very feeble health. Still another testified that she staggered as she walked from her seat to the door of the car. But this may have been caused by the valise which she carried in her hand, or by rising from her seat simultaneously with the stoppage of the train.
The following directions were given at the instance of the plaintiff:
First — Railroads are public carriers, and the utmost care is required of them for the safety of passengers upon their trains.
Second — A passenger is entitled to a reasonable time to leave the car in which he has been riding. When a train is stopped, for that purpose, and when reasonable time is not in fact allowed to get off in safety (of which juries are the judges), and in attempting to do so, without fault on his part, injuries result to him, he is entitled to recover from the railroad company for such injuries.
Third — If the jury find that the plaintiff, Ruth Atkins' own negligent conduct caused, or contributed to cause, the injury received by her, they will find for the defendant.
Fourth — Negligence consists in a want of the reasonable care which would be exercised by a person of ordinary prudence, under all existing circumstances, in view of the probable dauger of injury.
Fifth — If the jui’y find from the evidence in this cause that the defendant’s train did not stop at the station at Knoxville long enough to enable the plaintiff, Ruth Atkins, to leave the car and reach the platform ■while tbe train was stationary, and that she stepped off therefrom on the platform while the train was in motion, it is a question for the jury to say whether she was guilty of negligence, as above defined, and barred thereby from a recovery for the injuries received.
Sixth- — If the jury find from the evidence in this cause that the defendant’s train did not stop long enough at the platform to allow the plaintiff to leave the train while standing, and that she stepped therefrom while it was in such slow motion as not to indicate recklessness, imprudence or negligence, as heretofore defined, and that she-received injuries by a fall from the motion of the train, she is entitled to recover, and if you find for the plaintiff,. Ruth Atkins, you will assess her damages at a sum sufficient to compensate her for injuries sustained, the pain suffered, the effects of the injury on her health according to its degree and probable duration, the expense to her of' her sickness resulting from the injury and of attempting to effect a cure.
The court gave the following instruction on its own-motion, against the objection of defendant:
“A reasonable time to get off as' mentioned in these instructions is such time as it usually requires for passengers-to get oft and on the train at that station in safety.”
In behalf of the defendant the court charged as follows: ■
First — It was the duty of the plaintiff to exercise reasonable diligence in alighting from the train upon its arrival at the station; and if you believe the train stopped long-enough to enable her to have alighted by the exercise of reasonable diligence, you will find for the defendant.
Second — Railway passengers are required to take notice of the usual regulations. Where it is the custom to signal the approach to a station by the blowing of a whistle,, and to announce the name of a station in the ears for the purpose of giving notice and opportunity to passengers to be in readiness to depart without delay when the train stops; and when these regulations are observed, it is the duty of the passengers to make themselves ready to get off at once, and if thei’e is any z’eason why they need assistance, or require more than the usual time, they bhould. notify the officers and servants in the train.
Third — The defendant was under no obligation or duty to the plaintiff on account of her age or feebl'e condition, to assist her off the train, or to stop longer at the station than was usual, to enable her to get off, unless she had notified the conductor or some employe on the train of her ■condition.
The defendant also prayed the following direction:
Fourth — If the act of the plaintiff in attempting to get ■off the train after it had started was such as a prudent person in her condition, exercising care proportioned to the danger, would not have done, the defendant is not liable for the injury, and the jury in deciding whether it was prudent for her to attempt to alight, will take into consideration her age and physical condition. A passenger who is old and feeble has no right to take a risk that a person in that condition cannot prudently take and throw the consequences upon the carrier, the railroad company in this case.
The bill of exceptions recites that the court struck off from this instruction the orderingwords at the end thereof, •and gave the residue of said instruction to-wit: “ If, in this cause, you believe from the evidence the plaintiff delayed and remained in the car longer than was usual, and on account of such delay was too late to get off before the train started, the defendant is not liable for her injuries, and you will find for the defendant.”
The court refused the following requests of the defendant:
Fifth — It was the duty of the defendant upon the approach of the train to the station to announce the name of the station, and of the plaintiff to get herself in readiness to get off as soon as the train should arrive and stop at the station, or.if from age and debility, she was not ■able to get off with usual diligence, or without assistance, it was her duty to notify the defendant’s servants of her ■condition. Upon .the arrival of the train it was her duty to get off at once, and the defendants were required to stop the train a reasonable length of time to enable the passengers to alight; but they were not required to stop' longer on account of any inability of plaintiff to get off' promptly, or to assist her in alighting, unless she had notified them of her condition. A reasonable time was as much time as usually had enabled passengers to get off and get on the train at that station in safety.
If you believe that no notice was given that plaintiff' required assistance, or more than the usual time to get off, and that the train stopped a reasonable time at the station, you will find for the defendant, even though she may have been unable to get off within the usual time or without assistance. If the train'was not stopped a reasonable time to enable the plaintiff to get off, it was her duty to remain in the car and request the employes in charge of the train to carry her back to the station, and, if they refused, to go on to the next station, and she would have been entitled to sue and recover from the defendant damages for the annoyance and inconvenience caused to her by being carried by her station; but she had no right to run any risk of injury by attempting to get off after the train had started. And if, from her age or weak and feeble condition, it was imprudent for her to attempt to alight after the train was in motion, the defendant is not liable for the injury that resulted to her, and it is your duty to find for the defendant.
Sixth — If she was infirm from recent illness and was by that reason prevented from alighting before the train started, when a person free from injury could, by reasonable diligence, have alighted, and did not notify the employes on the train of her feeble condition, the defendant is not liable for the injuries, and you will find for the defendant.
Seventh — If you find that the plaintiff, upon the arrival of the train at Knoxville, did not immediately proceed to get off, but delayed for a time, waiting or looking for friends to meet her, and that it was by reason of her delay that the train was put in motion before she got off:, the defendant is not liable for her injui’ies, and you will find for the defendant.
Eighth — If you believe from the evidence the plaintiff was looking for friends to meet her at the depot, and when the train stopped that she delayed, looking for her friends, instead of getting off at once, and was thereby delayed until it was too late for her to get off before the train started, you will find for the defendant, although you may believe the defendant was negligent in not stopping the train a greater length of time.
Ninth — If you find from the evidence that the train was stopped the average lengtu of time at the station that passengers were in the habit of getting off and on at that' station, and the time had always, on previous occasions, been sufficient, there was no negligence on the part of the defendant, and you will find for the defendant.
Tenth — If you believe the train was stopped long enough to enable passengers of usual health and vigor to have alighted by. the exercise of reasonable diligence, you will find for the defendant, unless you fui’ther find defendant’s servants were notified that plaintiff was unable to get off within the usual time.
Eleventh — If you believe the plaintiff's injury was caused by the mutual fault of the plaintiff and defendant, you will find for the defendant, although defendant’s fault may have been greater than plaintiff’s.
Twelfth — The mere fact of the injury does not render defendant liable. It must have been caused by defendant’s negligence, unmixed with any fault on plaintiff’s part. And the plaintiff must prove negligence on the part of the defendant, and that she was free from negligence on her part. And unless you find from the weight of the evidence, first, that defendant was guilty of negligence which contributed to her injury; and, second, that she was free from fault ,or negligence, you will find for the defendant.
Thirteenth — If you believe from the evidence that the plaintiff’s injuries were caused by her attempting to get off the train while it was in motion, that she- was at the time old and feeble, you will find for the defendant, even though you may believe defendant was guilty of negligence in not stopping the train a longer time at the station.
Fourteenth — If you believe from the evidence that the plaintiff was old and infirm to such an extent that it was dangerous for her to attempt to get off the train while it was in motion, you will find for the defendant, although you may believe defendant was negligent in not stopping the train longer at the station.
Fifteenth — If the defendant was aged and feeble, so that she needed assistance in alighting from the cars, it was contributory negligence for her to attempt to get off the cars while the train was in motion, and you will find for the defendant, although you may believe the defendant was also negligent in not stopping the train longer at the station.
Sixteenth — If you believe from the evidence that it was imprudent, in view of her age and feeble condition, for the plaintiff to attempt to get off the train while it was in motion,-you will find for the defendant, although you may believe that the train was not stopped long enough to give her time to alight.
Eighteenth — If the plaintiff was old and feeble, and attempted to get off the train while it was in motion, with a heavy valise in her hand, such act constituted contributory negligence on her part, and she cannot recover in this action.
An exception in mass was attempted to be reserved to the six instructions given in behalf of the plaintiff. We perceive no serious objection to any of them, nor to the direction given on the court’s own motion.
We confess our inability to comprehend what modification the court made of the fourth prayer of the defendant, what portion of it was granted and what rejected, and in what form the instruction was finally given. Under such circumstances, the presumption is the instruction as modified embodied the law. Smith v. Childress, 27 Ark., 328; St. L., I. M. & S. Ry. Co. v. Hecht, 38 ib., 357.
Of the denial of the remaining prayers, error cannot be justly predicated. The fifth, sixth, thirteenth, fourteenth, fifteenth, sixteenth and eighteenth assume the existence of a state of facts, of which the record contains no evidence, viz.: the enfeebled and debilitated condition of the plaintiff'. Whatever of value or sound law was contained in the seventh, eighth, ninth, tenth and eleventh had already been given in charge to the jury. The repetition and reduplication of instructions is a practice not to be commended. All the law applicable to this case, which it was necessary for the jury to know, might have been expressed in half a dozen concise propositions.
The twelfth prayer announced an incorrect rule of law. Contributory negligence' is a defense and the proof of it devolves upon the defendant, who alleges it, and therefore holds the affirmative of this issue. The courts of last resort in Massachusetts and several other states have, indeed, adopted the contrary principle — that the plaintiff must show he was in the exercise of due care, at the time the injury happened. But this, it is believed, is inconsistent with the rule of evidence, adjusting the burden of proof according to the state of the pleadings; and it is certainly opposed to the weight of authority as settled in England, in the Supreme Court of the United States and a majority of the states of the union. The cases on this subject are collected in Beach on Contributory Negligence, sees. 156-7.
This court has already given in its adhesion to the more reasonable rule — that the plaintiff’ will be presumed to have been ordinarily prudent until the contrary appears, either from his. own evidence, or that of the defendant. T. & St. L. R. Co. v. Orr, ante 182.
The jury in this case might well have concluded from the testimony that the railroad company had not afforded a reasonable time to passengers, who held tickets for Knoxville, to leave the cars in safety.
The next question was whether the plaintiff was herself negligent, either in getting off promptly or in getting off at all, under the circumstances in These were essentially questions of fact; and some of the rejected prayers sought to take the last mentioned question from the jury. It is not negligence per se for a passenger to leave a moving train. As was said by Mr. Justice Harrison in St. L., I. M. & S. Ry. Co. v. Cantrell, 37 Ark., 526, “ It may, as a general proposition, be said, that it is imprudent and a want of ordinary care, to alight from a train while it is in motion; but whether it was so in a particular case must depend upon the circumstances under which the attempt was made. It would not be so, if the train was moving so slowly that no damage could be reasonably apprehended.” Whether it was culpable or excusable, depends on the rapidity of the motion, the fact whether it is day or night, the distance from the car to the ground or other surface- upon which the passenger proposes to alight, the age and vigor of the party, and whether he takes the risk by the command or encouragement of the company’s agents in charge of the train, or to escape a greater peril. M. & L. R. R. R. Co. v. Stringfellow, 44 Ark., 322; St. L., I. M. & S. Ry. Co. v. Rosenberg, 45 ib., 256; Sibley, Rec’r v. Smith, ante 275; Cumberland, etc., R. Co. v. Manyan, 61 Md., 53; Filer v. N. Y. C. R. Co., 49 N. Y., 47; Morrison v. Erie Ry. Co., 56 ib., 302; Bucher v. N. Y. C. & H. R. R. Co., 98 ib., 128; Penn. R. Co. v. Kilgore, 32 Pa. St., 292.
The plaintiff was not threatened with any danger by remaining on the cars, nor did she act upon the advice -of any of the trainmen. But she was compelled to decide upon a sudden emergency, whether she should leave the train, or be carried past her destination. And although the event showed that she underrated the danger, yet as the danger was not apparent, she should not be held to the most rigid accountability for her mistake of judgment. Filer v. N. Y. C. R. Co., supra; Satler v. Utica, etc., R. Co., 88 N. Y., 49; Bucher v. N. Y. C. & H. R. Co., supra.
Affirmed. | [
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Smith, J.
In this ejectment the plaintiff claimed under a tax deed based upon a sale for non-payment of taxes for the years 1874-5, and the defendant under a homestead entry. The issue was tried, by consent, before the court, without a jury, upon the title papers exhibited with the pleadings and an agreed statement of facts. The findings and judgment were for the defendant. The plaintiff excepted to the findings, opinion, ruling and judgment; but tendered no bill of exceptions, and did not ask for a re-trial. No special declarations of law were moved, and none were given by the court of its own motion.
A paper is copied into the transcript, marked filed bv the clerk, and purporting to be an agreed statement of the facts submitted to the court; but not subscribed by the parties or their counsel. It is probable that the court accepted the facts so ascertained ; but the paper itself constitutes no part of the record, not being certified to us by a bill of exceptions, nor identified by an order of court as the veritable agreement upon which the cause was tried. Lawson v. Hayden, 13 Ark., 316; Ashley v. Stoddard, 26 ib., 653; Carroll v. Boyd, 30 ib., 527.
Besides, no motion for a new trial was made. We cannot, therefore, inquire whether the special findings of the court are supported by the stipulation as to facts, even if the stipulation had been preserved and came to us in proper form. The necessity for such a motion, in order to have errors of this nature reviewed, exists equally in cases submitted to the court and those submitted to a jury, and as well where there is an agreed statement of facts, as where the facts are proved by witnesses. Gardner v. Miller, 21 Ark., 398; Walker v. Swiggart, ib., 404; King v. Little Rock, 26 ib., 479.
But a motion for a new trial Í3 unnecessary where the errors complained of do not grow out of the evidence or instructions, but appear from the record itself, without. the intervention of a bill of exceptions. Steck v. Maher, 26 Ark, 536; Ward v. Carlton, ib., 662; Worthington v. Welch, 27 ib., 464; Union County v. Smith, 34 ib., 684; Douglass v. Flynn, 43 ib., 398.
The only question, then, raised by the appeal is: Does the judgment pursue the special findings ; that is, conceding the facts to have been correctly found, does the legal consequence, deduced by the court, follow ?
The court found that the lands in controversy were selected and unconfirmed swamp lands, not subject to entry, and as such were entered at the United States district land office at Champagnolle, Arkansas, in which district the same were situated, by one Michael Yeager, for the price established by law, as follows, to-wit: The northeast quarter of northwest quarter of section two, township fourteen south, of range sixteen west, on the 20th day of May, 1860; and the west half of northeast quarter of said section, on the 11th day of June, 1860; and that said entries were canceled as having been erroneously made, by the commissioner of the general land office of the United States, at Washington, D. C., in the year 1878; and that previously thereto the said lands had been taxed and forfeited and sold to plaintiff as the property of Michael Yeager, for the non-payment of the taxes thereon, under the laws of the state of Arkansas, as shown by exhibit “A” to the complaint. That subsequent to said cancellation plaintiff received his tax deed, said exhibit “ A,” upon which he based his claim herein, and subsequent to said cancellation the administrator of said Michael Yeager, then deceased, received from the United States government, through its proper officer, repayment of the purchase money paid by said Michael Yeager originally, as aforesaid. And that the selection of said lands as swamp and overflowed lands, under act of congress 28th of September, 1850, was duly set aside and canceled by the said commissioner of the general land office, on the 8th of June, 1882, and that said lands thereby and thereafter became subject to disposal accord ing to the laws of the United States, and the rules and regulations of the general land office thereof; and being so subject to disposal, the defendant, W. T. Hollis, at the United States district land office at the town of Camden, in the state of Arkansas, the same being the proper land office for that purpose, did enter all of the aforesaid lands, being all of the lands in controversy, under the homestead laws of the United States, and received the receipt of the receiver of said district land office, showing the same, dated the 29th day of September, 1883, which receipt is filed with the answer herein as exhibit “A”; and by virtue of this said entry the defendant immediately took possession of said land, and was in possession of the same at the date of the commencement of this action.
And the court, upon consideration, was of opinion that the defendant, W. T. Hollis, by virtue of his said homestead entry, is the owner of said land as against all the world, save and except the United States, and is entitled to the possession of the same.
The validity of the plaintiff’s title depends on the liability of the lands to taxation in the years 1874-5. And that again depends upon the fact whether at the time of the assessment for taxes, they were the property of the general government, or of an individual. The court declared that the lands were not subject to entry in 1860 ; but this is a conclusion of law, not the statement of a fact. It must be assumed that the greater part of the two tracts was dry land, and therefore that the tracts were not included in the grant made to the state by the swamp land act. For otherwise, neither of the parties, plaintiff or defendant, has the shadow of a title, but the lands belong to the state. In fact the decision of the Interior Department in 1882, rejecting the selection of these lands as swamp and overflowed, is final and conclusive. The char acter of the lands, whether wet or dry, was a question of fact; and the., act itself devolves upon the secretary of that department, the duty of determining-the question. Johnson v. Towsly, 13 Wall.; 72; French v. Fyan, 93 U. S., 169. And if the greater part of the two subdivisions was dry,, at the date of the grant, the mere selection of them as-swamp lands by the agents of the state, did not have the-effect to withdraw them from sale. It only amounted to a claim that the lands were of the description granted by the act; which claim, upon investigation, proved to be-unfounded. While it would have been eminently proper-for the general land office to withdraw from the market lands so selected and reported,, until such selections were either confirmed or rejected, yet this did not prevent the government from selling its lands. The state by compact entered into on its admission into the union, covenanted not to interfere with the primary disposition of the soil by the United States, nor with the regulations adopted by congress for securing titles to purchasers.
It follows that the entries of Michael Yeager were valid. And as soon as he paid the price and- received his certificates, the contracts of purchase became complete, the lands were segregated from the main domain and became-private property, and therefore taxable. It is of no moment that the patent had not issued. The government held the naked legal fee in trust for the purchaser who had the equitable title. Witherspoon v. Duncan, 21 Ark., 240; affirmed on error, 4 Wall., 210; Diver v. Friedheim, 43 Ark., 203; Carroll v. Safford, 3 Howard, 441.
We are not aware that the power of canceling, entries is lodged in the commissioner of the general land office, or in any other officer, except where the land had been previously sold, or reserved from sale,, by the United States. Neither of these causes existed- here, as it appears-, but only a supposed conflict with a prior selection as swamp land.. We may infer that the cancellation was with the consent, or acquiescence of the legal representatives of Yeager.. But this would not destroy the intervening title of the-purchaser at tax sale. The administrator and heirs of Yeager had. themselves no interest in the premises in, 1878, unless it was a right to redeem from the tax sale.
Judgment reversed and cause remanded, with directions-to enter judgment for the plaintiff upon the special findings. | [
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Cockrill, C. J.
The appellant sought to restrain the collector of taxes for Cleburne county from selling a portable engine, boiler and saw mill, which had been seized for •overdue taxes. It is alleged in his complaint that this property was listed for taxation in the years 1882 and 1883 as personal property by one Smith, who was then the owner of it; that some time in the year 1883, Smith, who had not paid the taxes charged upon his personal property, sold the mill, engine and boiler to a firm of merchants, from whom the appellant purchased without knowledge of the fact that Smith’s taxes were .unpaid; that Smith had also listed other personal property for taxation in the same years, and that “the taxes charged against him for those years on account of personalty amounted to the sum of $90, which amount included the taxes charged upon the property owned by the appellant and described above; that in the spring of 1884, after the time for paying the taxes of 1883 had expired, the collector distrained the property described and was proceeding to sell it to pay the full $90 charged against Smith.
The court, after issuing a temporary restraining order, sustained a demurrer to the complaint and dismissed it for want of equity.
It is contended for the appellant that the state has no lien for taxes upon personal property in the hands of a purchaser from the person to whom the property was .assessed; but that if such lien exists each specific article is liable only for its due proportion of the taxes, and that no summary remedy is given for its collection.
Conceding the jurisdiction of equity to interfere by way of injunction in this class of cases under section 3731, Mansfield’s Revised Statutes, we may consider the points stated.
The right of the state to any lien under the case presented and the power of summary enforcement of it must be prescribed by statute. It does not exist otherwise. Crawford v. Carson, 35 Ark., 565, 579.
The right to the lien upon personal property is found in the following provisions of the revenue law: Sec. 5712, Mansfield’s Digest: “Taxes assessed upon real or personal property shall bind the same and be entitled to preference over all judgments, executions, incumbrances or liens whensoever created, and all taxes assessed shall be a lien upon and bind the property assessed from the first Monday in February of the year in which the assessment shall be made, and shall continue until such taxes, with any penalty that may accrue thereon, shall be paid. Provided, that as between grantor and grantee said lien shall not attach until the first Monday in July in each year.”
Ssc.571fi: * * * “ The taxes shall be a charge upon the real and personal property taxed, and when sold shall vest the title in the purchaser without regard to who owned the land or other property when assessed or when sold.”
After so clear a declaration that taxes are a charge upon personal property, and that the lien thus created can be discharged by payment alone, the intention of the legislature to except any one, however innocent his purchase, from its operation, must be found int the act itself. The courts can engraft no exception upon the statute. If the lien was not intended to bind the property in the hands of whomsoever found, the provisions were unnecessary as far as they relate to personalty, for other provisions of the statute authorize the distraint of any or all of the personal property owned by the delinquent at the time of seizure, regardless of the fact whether it was ever assessed or taxed. If it was. not the design of the statute^o enable the state to follow this class of property, wherever found, why is the lien made to relate to the first Monday in February, when the tax is not due until October? "Why is the provision inserted for a sale without regard to ownership at the'time of sale? Besides this, the proviso to the first of these sections contemplates that, in the absence of an agreement between the parties, the vendee purchasing before the first Monday in July is under the legal obligation to pay the taxes, or a part of them in any event, that are a charge upon the property purchased, or at least shall make no claim upon his vendor for indemnity. Crowell v. Packard, 35 Ark., 348. It is apparent that when the lien attaches it is paramount and remains a charge without regard to change of ownership. 2 Desty Tax, p.p. 732, 739; State v. Rowse, 49 Mo., 586; Anderson v. State, 23 Miss., 459, 475.
In the creation of the lien the statute makes no difterence in terms between real and personal property, but it is elsewhere expressly provided that each tract of land is separately responsible for the taxes due upon it and no more. No similar provision exists in regard to personal property, and the confusion of terms used in declaring the lien does not leave it clear whether the legislature intended to extend the lien for all the taxes due for personalty from an individual to all the personal property listed by him, or to give it a more restricted extent. It is declared that “taxes assessed upon real or personal property shall bind the same; ” and again, “all taxes assessed shall be a lien upon and bind .the property assessed.”
To assess property is simply to place a value upon it. To assess taxes is to fix or settle an amount to be levied or raised upon the property. Valle v. Fargo, 1 Mo. App. R., 344. Now the statement or list of personal property which the statute requires the tax payer to furnish the assessor must distinctly set forth the several classes of property specified in the statute with the value of each class; as so many horses, so many neat cattle, so much merchandise, etc., with the value of each class. Mansf. Rev. St., sec. 5620. These classes, with the value of each, are carried forward into the tax-books by the clerk. He states the total valuation of each individual’s personal property and the aggregate only of his personal taxes; and if we are to regard this sum as the taxes assessed upon the personal property as a whole, then the lien for the whole tax would extend to each item of property in any given list. But this construction would burden personal property with secret liens to an extent to be abhorred, and would be a restraint upon the free exchange and alienation of personal property that ought not to be drawn from the statute, when the meaning is not clearly manifested. "W e are inclined to the view that the amount is assessed in gross by the clerk for the convenience of the collector merely in collecting and receipting for taxes in the ordinary mode. Property is taxed according to its value by a uniform rate, and the amount of taxes assessed upon any particular piece of property when its value is shown, is found by multiplying the value by the rates of taxation. If then the taxes are a lien upon the property as it is assessed or valued, as seems to be contemplated in the second provision last above quoted, we must look to the assessment of the property for the extent of the lien. As each class, whether comprised of one or more articles or items, is valued as- a whole, the taxes assessed upon this value are the extent of the lien or charge upon the class; but the taxes being assessed upon it as a whole, each several part is liable in solido for the taxes of the class to which it belongs, just as they would be if all were included in a mortgage or condemned by decree of court. The intent of the legislature to give the lieu this extent is clear. To seek to limit it further and confine it to each article as though assessed and taxed alone, would lead to inextricable confusion. The officer seeking to enforce the lien could not segregate a part from the whole and determine for himself its proportion of the assessed value. In the absence of an express declaration to that effect, we cannot presume the legislature designed to impose such difficulties upon the collection of the revenue. Hill v. Figley, 23 Ill., 418; Binkert v. Ry., 98 ib., 205; Mesker v. Kotch, 79 Ind., 68.
After the 10th of February, in any year, the collector is authorized to proceed to collect the taxes due upon personal property by distraint. Any personal property belonging to the delinquent tax payer is liable to be seized and sold for taxes due upon personalty. Sec. 5764, Mansf. Rev. St. Section 5713 provides that no property shall be exempt from distress “ for taxes due thereon,” and the section following, which is quoted above, contemplates a sale of the property upon which the tax is a charge without regard to who owns it at the time of sale. The process of distraint is in the nature of an execution; any property to which the lien of the taxes due attaches may be taken in satisfaction, just as the officer holding an execution may take property to which the lien of the judgment or of the execution attaches, regardless of the claim of ownership.
The appellant was entitled to no relief upon the case made. "We have not overlooked the allegations in the complaint, that the lien for taxes for one of the years above mentioned did not attach because of irregularities in the .assessment and levy for that year. The demurrer confesses the allegations, it is true, but if this would otherwise entitle the appellant to relief, it cannot affect the correctness of the ■decree rendered. No attack is made upon the regularity of the taxes for the other year named, and no offer or tender •of the taxes which were a valid charge was ever made. This is sufficient ground for the denial of relief upon the maxim, that “he must do equity who seeks it.” Worthen v. Badgett, 32 Ark., 496; Mesker v. Kotch, 76 Ind., supra.
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Battle, J.
This action was brought by appellants, Sue-M. Grider and W. H. Grider, her husband’, in the Mississippi circuit court, to restrain John L. Driver, as trustee,, from foreclosing six several deeds of trust given by appellants on a large body of land in Miississippi county, to-secure certain debts mentioned In the deeds.
On the 1st day of May, 1879,. James D. Driver was the owner of five notes executed by Sue M. Grider, then Sue-M. McGavock, to different parties and for different amounts. All of these notes were bearing interest, except one for the sum of $3,133.35, which was due on the 1st day of October,. 1879, and bore 10 per cent, interest from, maturity until paid. He loaned her $233. According to an agreement. made with.her, he calculated the interest on all these notes then bearing interest down to the 1st day of May, 1879, and then added all the principals of the notes then bearing interest, and the interest so calculated thereon and the $233 cash loaned, and on the sum total, thereof calculated interest at- 10 per cent, from the 1st day of May, 1879, to the 1st day of May, 1881, and calculated the interest on tbe note for $2,133.35 from the 1st day of October, 1879, the day when it commenced bearing interest, down to the 1st day of May, 1881, and added this interest, and the $2,133.35, said sum total and interest calculated thereon, making the sum of $5,514.57; and Miss McGavock executed her note to Driver for this amount, due the 1st day of May, 1881, and bearing 10 per centum per annum interest from maturity until paid, and executed the first of the six deeds of trust to secure the payment thereof. This deed in trust and the note secured thereby were delivered to, and received and accepted by Driver in payment and satisfaction of the notes held by him, which were surrendered to Miss McGavock.
On the 17th day of February, 1880, James D. Driver held and was the owner of a note executed by Miss Mc-Gavock, now Mrs. Grider, to Stowell & Heintz for $224.40, bearing 10 per cent, interest from the 1st day of June, 1879, until paid. Miss McGavock was also indebted to Driver for cash loaned on the 19th day of September, 1879, in the sum of $225. He loaned her the further sum of $1,000, and paid for her $6 for conveyances made by her. He then calculated the interest on the Stowell & Heintz note, and the sums of cash loaned and paid, at the rate of 10 per cent., in the same manner he did in taking the first deed in trust, making the amount due thereon, on the 17th day of February, 1881, $1,628.59; and Miss McGavock executed her note for this amount, bearing date the 17th day of February, 1880, due on the 17th day of February, 1881, ■and bearing 10 per cent, interest from maturity until paid, and executed the second of the six deeds in trust to secure the payment thereof. This deed in trust and the note secured thereby were delivered to Driver, and all the evidences of the indebtedness incorporated in the new note were by him delivered to Miss McG-avock.
On the 20th day of March, 1880, appellants borrowed of James D. Driver the sum of $2,500 for one year; agreed to pay him for the use thereof interest at the rate of 10 per cent, per annum, and executed to him their note for the sum of $2,750, the amount of the sum loaned and one year’s interest thereon, due on the 20th day of March, 1881, and bearing 10 per cent, interest from maturity until paid, and executed the third of the six deeds in trust to secure the payment thereof.
On the 14th day of September, 1880, James D. Driver held and was the owner of four other notes of Miss Mc-Gavock and one of W. H. Grider. These notes were •executed to different parties and for different amounts. According to an agreement with appellants, he calculated the interest on these five notes in the same manner he did in taking the first deed of trust, making the amount due thereon, on the 1st day of January, 1882, $2,769.78; and appellants executed their note for this amount, bearing date the 14th day of September, 1880, due on the 1st day of January, 1882, and bearing 10 per cent, interest from maturity until paid, and executed the fourth of the six deeds in trust to secure the payment thereof, and delivered the same to Driver, which he accepted in satisfaction of the five notes then held by him, which he surrendered to appellants.
Appellants contend that the notes secured by the first four deeds in trust, in so far and to the extent appellants, or either of them, thereby undertake to pay interest on the interest to accrue after the respective dates thereof, are void. They insist that while it is not usurious, according to the more recent decisions, to compound interest, provided the rests are not so frequent as to indicate an intention of evading the usury laws, the compounding must be upon interest already accrued; that the parties cannot stipulate that interest subsequently to accrue shall be compounded; that such stipulation is in the nature of a penalty, and will be deemed void in equity, and that the damages allowed by law for a failure to pay money when due is the lawful interest, and any promise to pay more than that is regarded as an extortion on the part of the creditor, and should be held invalid.
The statutes of this state expressly say: “ The parties to . any contract, whether the same be under seal .or not, may agree in writing for the payment of interest not exceeding 10 per centum per annum on money due or to become due.” Mansfield’s Digest, sec. Jfl38.
In Wallis & Bro. v. Lehman, Abraham & Co., 36 Ark., 569, it was held by this court that a promissory note given for the aggregate amount of an account for advances and 10 per cent, interest thereon to date of the note, and bearing 10 per cent, interest from its date, is not usurious.
In Turner v. Miller, 6 Ark., 463, the plaintiff holding several small notes against the defendant, by agreement with him, calculated the interest due on each note, and adding it to the principal, took a new note for the whole sum, bearing 10 per cent, interest, and this court held that the new note was not a usurious contract.
In Vaughan v. Kennan, 38 Ark., 114, appellants executed their promissory note for $875, dated the 5th day of February, 1873, payable on the 1st day of September, 1874, and bearing 10 per cent, per annum interest from date, and stipulated therein that if the interest was not paid annually, it should become principal and bear the same rate of interest; and this court held “ that the note itself continued to bear interest at the rate of 10 per cent, after maturity as before, and that the unpaid interest due at maturity became interest-bearing at the same rate, together with the successive annual installments of interest as the failure to pay them occurred on each anniversary of the maturity of the note; not, however, so as to compound the interest on the amounts in default, which should each bear simple interest alone at the contracted rate.”
In Portis v. Merrill, 33 Ark, 416, Portis was sued on a note executed by him to Merrill for $475.79, dated the 28th day of June, 1874, due on or before the 28th day of November, 1874, and bearing 5 per cent, interest per month from due until paid, and he endeavored to avoid the payment of the 5 per cent, per month interest by a plea in equity that it was an agreed penalty intended to stimulate him to pay the note promptly at its maturity; and this court held that this interest could not be avoided by any such plea. Chief Justice English, in delivering the opinion of this court, said: “It was a hard bargain, and the creditor may have been over-exacting, but appellant must abide by the face of his written contract, as we held in Miller v. Kempner, 32 Ark, 573. We cannot make new contracts for parties, or alter their plain meaning by construction. * * * * A sane man has no claim upon a court of law or equity to relieve him from a hard bargain, when it is voluntarily entered into, and no fraud is practiced upon him.”
It is not proven that there was any fraud practiced upon appellants, or either of them, in the execution of the first four deeds of trust, and the notes respectively secured thereby. In the giving and taking the notes mentioned interest was not compounded so often as to indicate an intention to evade the usury laws. The maker thereof had a right, under the laws óf this state, to contract to pay any rate of interest not exceeding 10 per centum per annum on moneys due or to become due. The interest to accrue on these notes was as much money to become due as the principals. The note sued on in Vaughan et al. v. Kennan, supra, and the notes secured by the first four deeds in trust in this- ease, stand upon tbe same principle. The only difference is in the form of the contract. In one case it is stipulated that the interest when due shall become principal and bear 10 per cent, interest; and in the other case the interest down to the maturity of the notes is made parts of the principals and together with the principals bear 10 per cent, interest from the maturity of the notes. The effect in both, cases is the same; and the notes in botb «ases are valid in law and equity.
When usurious. On the 19th day of April, 1881, appellants executed to James D. Driver their note for the sum of $1,524, for an indebtedness then contracted by them with him and for corn before that time sold to them, dated the day of its execution, due on the 1st of January, 1882, and bearing 10 per eentum per annum interest from date until paid; and Driver agreed to advance to them moneys, goods, wares and merchandise to the amount of seventeen hundred and sixty dollars during the year 1881. To secure this note and advances to be made they executed the fifth of the six deeds of trust.
Under his contract with appellants for advances, Driver furnished them with Mississippi county warrants to the amount of $377.31, worth at the time eighty cents on the dollar, and with supplies amounting in the aggregate, including 20 per cent, added to the cost thereof, to the sum of $1,352.27. Driver testified that it was agreed and under stood that he should be paid dollar for dollar in currency for the county warrants in consideration of his agreeing to wait until the end of the year for his pay; that he sold the county warrants to appellants at their face value on a credit; and that it was agreed he should be paid the costs and 20 per cent, thereon for the supplies; and that the 20 per cent, was added to pay him for his risk and trouble had and incurred in furnishing them. W. H. Grider testified that the difference between the value of the county warrants and the amount for which the same was issued was allowed as interest.
Appellants insist that the contracts under which these county warrants and supplies were furnished is usurious and void. Are they correct ?
In Ford v. Hancock, 36 Ark., 248 this court said :
“ It is not usury for one who sells a piece of property on credit to contract for a higher price than he would have sold it at for cash. If the intention be, in fact, to sell on credit, he has a right to fix a price greater than the cash price, with legal interest added; but if the sale be really made on a cash estimate, and time be given to pay the same, and an amount is assumed to be paid greater than the cash price, with legal interest, would amount to, this is an agreement for forbearance that is usurious.”
Mr. Tyler says:
“ The rule is, therefore, well established by the ancient authorities, and the same is recognized at the present day, that where usury is disguised under a sale of merchandise, the property in the goods passes to the vendee, but the excess of price over the just value is considered as a premium for the forbearance of the debt, founded on a presumed loan of so much of the purchase money as is equivalent to the cash value of the commodity sold. It will be observed, however, that the object with which the person taking the goods entered into the transaction was the immediate means of supplying his wants, and that the sale-adopted was only colorable, and not in the common course-of trade.
“The same rule applies to a sale or exchange of diosesin action, or credit, or where a part only of the consideration is a transfer of chattels, when the real object is a loan of money, although, in fact, no money is received by the-borrower. The law, looking at the substance of the transaction, converts the substitute agreed upon by the parties-into money according to its cash value. So that, in every instance where the object of the parties is a loan of money,, and something else, under the form of an exchange or sale, is substituted for it, the principal of the loan, and consequently of the debt contracted by the nominal vendee, will' be the value in money of the substitute received by him ;. and any consideration paid or reserved to the vendor beyond that will, in general, be considered as interest for its forbearance ; and, if exceeding the legal rate, will be regarded as excessive and usurious.” Tyler on Usury, 300.
Driver was a planter. lie kept plantation supplies in his dwelling and smoke-house to sell to his employes. He did not keep them to furnish planters. He, however, sometimes sold to persqns other than his employes, but this was not his business. He was not a merchant and did not hold himself out to the world as such. He was a man of considerable property; had money to invest in good notes, and sometimes loaned it. He had loaned appellants various and large sums of money on several occasions. He was to purchase the goods furnished appellants as they needed them. It was not expected that, in furnishing them, he would do more than order and pay for them. He ordered them from parties in Memphis and St. Louis, and they were shipped directly to appellants. The bills- were sent to Driver. The real effect of this transaction was, that appellants borrowed the amount paid fob the supplies and agreed to pay him 20 per cent, for the use thereof for a period of time less than one year. The manifest intention of the parties to this merchandise transaction, as shown by the whole evidence and the dealings of Driver and appellants, was to borrow and loan money, under the disguise of a pretended sale of merchandise, at a greater rate of interest than 10 per cent, per annum. The same is true of the county warrant transaction. The preponderance of evidence sustains Grider’s statement and understanding as to that.
But “he who seeks equity must do equity.” Upon this principle it is well settled that one who goes into a court of equity for relief against a usurious contract can obtain none, except on the condition he pays the principal and legal interest. Pickett v. Merchants National Bank of Memphis, 32 Ark., 346; Anthony v. Lawson, 34 Ark., 628. Appellants in this case will, therefore, be required to pay eighty cents on the dollar for the county warrants and 6 per cent, interest on the value thereof at eighty cents on the dollar from the time the same were furnished, and the amount paid for the goods and 6 per cent, interest from the time when Driver paid for them.
Shoemaker, Joplin & Co. were commission merchants, having an office and doing business in the city of Memphis, in the state of Tennessee. Miss McGavock was the owner of a large plantation and following the occupation of a planter in the county of Mississippi, in this state. During the year 1878 Shoemaker, Joplin & Co. furnished her with plantation supplies and advanced her moneys. She shipped to them a portion, if not all, of her cotton crop of that year. On the 19th day of April, 1879, in the city of Memphis, they had a settlement of accounts, and for the balance due Shoemaker, Joplin & Co. she then and there executed a note to them, giving the same for the sum of $2,375.89, due on the 1st day of January, 1880, and payable at Osceola, Arkansas, and Shoemaker, Joplin & Co. agreed to furnish and advance to her, during the year 1879, moneys and plantation supplies to any amount she might desire not exceeding one thousand dollars, and she agreed to ship to them her cotton crop of 1879 ; and to secure this note and future advances she executed the sixth deed in trust. They continued to advance moneys and supplies to her, during the year 1879, and she shipped to them a portion of her cotton crop of 1879. On the 11th day of September, 1880, they had a settlement, and it was ascertained that she was indebted to Shoemaker, Joplin & Co. on account, in addition to the note for $2,375.89, in’the sum of $110.54, for which appellant W. H. Grider executed his note, due the 15th day of December, 1880, and bearing 6 per cent, interest from date. James D. Driver purchased both the notes executed to Shoemaker, Joplin & Co. after the maturity of the larger and before the maturity of the smaller. The smaller note was incorporated in the note secured by the fourth deed in trust.
Appellants insist that the accounts of Shoemaker, Joplin & Co., settled by the notes executedto them, were usurious on account of illegal commissions and interest charged therein; that the proceeds of the sale of the cotton of 1879, shipped to Shoemaker, Joplin & Go., should have been appropriated to the payment of the note for $2,375.89 and the earliest items of the account of Miss McGavock with them, instead of appropriating them entirely to the payment of the account, so far as they would extend, as was done; and that the appropriation made, as it should have been, would have satisfied the sixth deed of trust, the pro ceeds being large enough to pay the indebtedness secured thereby.
The accounts of Miss McGavoek with Shoemaker, Joplin & Co. were made and contracted in Memphis, in the state of Tennessee, and their validity and the amounts due thereon depend upon and are determined by the laws of Tennessee. State v. Carl & Tobey, 43 Ark., 353; Parsons Oil Co. v. Boyett, 44 Ark., 230; and Jones v. McLean, 18 Ark., 456. There was no evidence introduced to prove what the laws of Tennessee are or were. In many cases it will be presumed that the laws of a foreign state, nothing being shown to the contrary, correspond with our own; but this presumption should not be indulged in when our laws impose a penalty or work a forfeiture, as in the case of usury. Our statute of usury is highly penal. It forfeits the entire debt, and did when these accounts were made. We are not, therefore, to assume that the laws of Tennessee correspond with our own, and visit the transaction with the same penal consequences. On the contrary, if the appellants intended to avail themselves of the benefit of the Tennessee statute of usury, they should have alleged in their complaint that the accounts were usurious by the laws of Tennessee, and should have sustained this averment by proof at the hearing. As the case now stands, we must assume that the accounts were not usurious. Hull v. Augustine, 23 Wis., 383; Cutler v. Wright, 22 N.Y., 472; Greenwade v. Greenwade, 3 Dana, 497; and Forsyth v. Baxter, 3 Ill., 9.
Appellants lost the right to have the proceeds of the sale of the cotton of 1879 appropriated in any particular manner, by the settlement made with Shoemaker, Joplin & Co., by the execution of the note for the balance of $110.51 found due on said settlement, and incorporating that note into another and securing the same by a deed in trust.
The decree of the court below is reversed, and this cause is remanded, with instructions to the Mississippi circuit court to enter a decree herein dissolving the-injunction granted in this suit, except in so far and to the extent it inhibits and restrains the sale of lands under the fifth deed of trust to pay any amount for county warrants and goods, wares and merchandise in excess of eighty cents on the dollar on amount of county warrants furnished appellants and 6 per cent, interest on the value thereof, estimating it at eighty cents on the dollar, from the time Driver furnished it to appellants, and in excess of the amount paid by Driver for the goods which he furnished to appellants and 6 per cent, interest thereon from the date of the payment thereof, and making the injunction perpetual as to such excess and forever restraining the collection thereof; and to render judgment against James D. Driver, one of the appellees herein, for one-sixth of the costs of the court below and against appellants for the remainder thereof. Judgment will be rendered here against James D. Driver for the costs of appeal. | [
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Hon.-Sam. W. Williams, Sp.. J.
In this case the appellee, filed his complaint against Erancis M. Ivy, as executor of Thomas Ivy, B. W. Green, administrator de bonis non of W. W. Andrews, and others, in the circuit court of Miller county, in chancery, upon which original summonses were issued for the defendants, on the 11th day of November, 1880. In the complaint the appellee describes himself “ as administrator, with the will annexed of estate of Thomas Ivy, deceased, late of' the county of Bowie and state of. Texas, duly appointed and qualified by the honorable the probate court in and for the county of Miller and state of Arkansas.” As no letters are attached, nor date of them given, we are not advised, by the transcript, as to the date, but infer from other matters apparent in the record, that the appointment had been made recently before the bringing of the suit. From the original and amended complaints and exhibits, upon which the case was decided below, on demurrer, it appears that Thomas Ivy, late of the county of Bowie and state of Texas, being seized of a large estate, both real and personal, situated in the states of Arkansas and Texas, on the 9th of December, 1857, made his last will, in which are the following provisions which are pertinent to this case, to-wit:
“Firstly — I desire all my just debts and liabilities to be paid by my executor hereinafter to be named.
“ Secondly — I devise and bequeath unto my brother, Marion Francis Ivy, all the estate, right, title and interest in possession, reversion or remainder, which I, at this time, have, or shall have, of, in and to lands, tenements, hereditaments or annuities, or reuts charged upon, or issuing out of them, whether situated in this the said county and state, Bowie county, Texas, or otherwise. And I further bequeath and devise unto my brother, all the right, title and interest, in possession, reversion or remainder, which I have at this time, or shall have, in or to any slaves or personal property whatever, whether the same is,, or may be in this, the said county and state, or elsewhere; most of said estate consisting of lands and slaves and other personal property, situated and being in said county of Bowie, and in the county of Lafayette, in the state of Arkansas. I do bequeath unto my said brother, Marion Francis Ivy, the proceeds of all my choses in action, and my interest in all claims, of every description, in which I am or may be interested; provided that none of the above legacies and bequests shall interfere with or annul the legacies hereinafter to be mentioned and set forth in this my last will and testament.
“ Thirdly — I bequeath and devise unto my nephew, Thomas II. Wallace, $5000, which I desire to be paid to' him, either in money or property, by my said brother, out of my said estate, when he, the said Thomas H. Wallace, arrives at the age of twenty-one years.
“Fourthly — I hereby nominate and appoint my said brother, Marion Francis Ivy, the executor of this my last will and testament, and desire him to carry out the foregoing provisions, and to attend to all matters of my estate as he may deem best.”
This will is duly attested by two witnesses, so as to make it a good will concerning real estate in Arkansas. Francis M. Ivy, called Marion Francis, in this will, proved this will, it is alleged, before the county court of Bowie county, Texas, a court having jurisdiction, though no record evidence of the probate is exhibited, and took out letters testamentary on the 24th of February, 1862, and fully administered the estate in said county in Texas, the domicile of testator. There is no allegation or evidence that the will and probatehave ever been admitted to record in Arkansas, .as prescribed by the statute regulating wills. Mansfield’s Digest, secs. 6513, 6531, 6582, 653Jp.
The testator departed this life on or about the 15th day ■of January, 1862, shortly before the probate of his will. That the executor has never made his final settlement with the Texas court; that his administration was still open, awaiting the result of an ancillary administration to be had in the state of Arkansas, where the largest and most valuable portion of the estate of testator, realty, was •and is situated, then in Lafayette, now in Miller county, in said state; and remained wholly and entirely unadministered by any court of competent jurisdiction in Arkansas. That testator, and his brother, Francis M., at the time of testator’s death, were partners in the business of •farming in the county of Lafayette, now in Miller. That the slaves were emancipated. That certain lands belonged to the testator in his own right, and he had an undivided half interest in others with Francis M. That William W. Andrews, on the 31st of October, 1865, filed his complaint, and had a writ of attachment issued against Francis M. Ivy, from the circuit court of Lafayette county, which was, on the 4th of November, 1865, levied upon portions of this land. On the 22d of November, 1867, Andrews recovered judgment against Francis 'M. Ivy, and on the 8th of November, 1871, the judgment was revived; and on the 15th day of October, 1875, a ven. ex. was issued on this judgment, directed to the sherifi of Miller county ; and on the 9th day of December the lands were sold in solido, and not in legal subdivisions, and Martha J. Andrews, as the administratrix of W. W. Andrews, became the purchaser. Before this sale, Francis M. Ivy, on the 1st day of May, 1875, mortgaged the lands, which were devised to him by Thomas Ivy, to Wm. B. Crabtree, reserving in the mortgage, the right to 160 acres, as a homestead. • That Crabtree well knew the condition of the lands, and the interest of the estate of Thomas Ivy, at the time the mortgage was executed. That the notes secured by the mortgage were assigned, by Crab-tree, to K. Mandel & Co., of Jefferson, Texas. That suit was brought, in the Miller circuit court, March term, 1879, to foreclose this mortgage, by Mandel & Co., against E. M. Ivy, Henry Moore, as assignee in bankruptcy of Eraucis M. Ivy, Crabtree, James Kelly and Mrs. Andrews, and B. W. Green, administrator, cle bonis non of W. W. Andrews. That a decree was rendered and an order made to sell land to satisfy it. That under this decree the lands which had belonged to Thomas Ivy, as well as those in which he had an undivided interest, were sold on the 7th of June, 1879, and were bought by William R. Kelly, who appears to have bought in trust for Mandel & Co.,, and B. W. Green, as administrator de bonis non, of Andrews’ estate. That on the 1st of December, 1875, Francis M. Ivy, on his own petition, was declared a bankrupt,, by the district court of the United States for the eastern district of Arkansas. That he scheduled these lands of Thomas Ivy as his, as residuary devisee subject to the payment of testator’s debts and the legacy to Wallace., and subject to his own mortgage to Crabtree. That Henry Moore was appointed assignee in bankruptcy of the estate of Francis M. Ivy, the bankrupt, who sold all the interest of the bankrupt in the lands embraced in the schedule, and James Kelly purchased them. That Kelly,, afterwards died, and John A. Roberts was appointed administrator, and as such, it was charged, was setting up-some claim to the land. That Kelly, in his lifetime, did not pay the assignee the purchase money, nor has his administrator, since. Kelly’s heirs are not named or made parties.
That Thomas H. Wallace, to whom testator bequeathed the sum of $5,000, departed this life on or about the 1st day of April, 1862, aged about twenty-two years. His heirs are named, but as this legacy is personalty, and a chose in action, the heirs, as such, cannot recover it. There has never been any administration of Wallace’s estate. The complaint further states, that the legacy to Wallace was not paid to him in his lifetime, nor has it been paid to “ his heirs ” since. It is stated, in general terms, in the complaint, that there are unpaid claims against the estate of the testator; that the estate, real and personal, in Texas has been exhausted and applied to the payment of partnership debts, and individual debts of Thomas Ivy; and all the personal property in Arkansas has been sold and so applied, and nothing is left to pay said legacy and indebtedness, except the Arkansas lands. The prayer of the complaint is, that all of the sales, in so far as they attempted to dispose of any lands belonging to the estate of Thomas Ivy, deceased, be declared void, set aside and held for naught; that William R. Nelly, now acting as trustee for N. Mandel & Co., and for B. W. Green, as administrator, etc., or some other suitable pers >n, be appointed receiver, with authority to take charge of said lands belonging to said estate during the pendency of this suit, to rent out the lands, collect the rents and hold the same, with the money he may have on hand, as such trustee, subject to the order of the court, and to do and perform all orders and duties that may be required of him by the court; that the defendant, Francis M. Ivy, as surviving partner of Thomas Ivy, may be required to discover and set forth a full, true and particular account of all and singular the partnership property and every part thereof which has been possessed by him, or come into his hands, or to the hands of any other person or persons by his or ■der, or for his use, with the particular nature, quality or qualities, and true value thereof, respectively, and how the same and every part thereof has been applied and disposed of; and that he also be required to set forth an account of the debts due from and to the testator, and what legacies, if any, have been paid, and to whom, and whether •any such debts are now outstanding, and why; that the ■said B. W. Green, as administrator, etc., and John A. Roberts, as administrator, etc., may be required by order of this court to render a true, full and particular account of ■all and every sum or sums of money which has or have been received by them, or either of them, or any other person by their or either of their orders, for and in respect of the rents and profits of said estate, or any part thereof; and that plaintiff have judgment therefor, and for such other and further relief as to justice and equity may appertain.
The plaintiff filed an- amendment to his complaint, making the heirs of W. W. Andrews parties, and stating that they claimed to own the lands under these several ■sales. And in response to a motion to make the complaint more specific, as to debts due from Thomas Ivy, in this •amendment, it is stated “that the plaintiff has been informed by the executor of the last will and testament of Thomas Ivy, deceased, in and subject to the jurisdiction of the laws of the state of Texas, there are subsisting and unliquidated debts and liabilities against the estate of Thomas Ivy, deceased, but to what extent, to what amount, ■and the nature and class of‘the same, plaintiff is not sufficiently informed with certainty.” This amendment sets out with useless particularity the names of the heirs of Wallace. As they could not sue for this legacy, and it must be collected, if at all, through an administrator on Wallace’s •estate, this was unnecessary. It sets out more minutely the manner of administering the estate in Texas, and exhibits the executor’s reports to the county court of Bowie county, and shows specifically the full administration of the assets there, which makes it more remarkable that the debts of the estate, if probated there, could not have been specified better than upon general information. The amendment further states, that the sales of the lands set out in the original complaint were made for the personal and individual debts of Francis M. Ivy. That these Arkansas lands are the only assets of the estate of Thomas Ivy remaining unadministered, out of which to pay Wallace’s legacy, and that the administrator and heirs of W. W. Andrews held possession of these lands under and by virtue ■of the sales set forth in the original complaint.
The circuit court of Miller county overruled a demurrer of defendants to the complaint and amendment, and after finding the facts, decreed that all the several sales of the lands be annulled, set aside and held for naught, and for recovery and possession of the land. It was further decreed that the lands were assets in the hands of Byrne, the administrator, for payment of debts and lawful demands of said estate, and that he proceed with said administration to a final settlement thereof, under the orders of the probate court of Miller county, and that he recover costs.
This plaintiff was an ancillary administrator in Arkansas. The office and duty of such administrator is to protect the rights of domestic creditors and pay their claims, to prevent the necessity of their having to follow the estate into a foreign jurisdiction, and to pay over any surplus in his hands, after paying home creditors, to the administrator of the domicile. Shegog v. Perkins et al., 31 Ark., 539; Williamson v. Furbush, 31 Ark., 539; Gibson, ad., v. Dowell, 42 Ark., 164; Clark v. Holt, 16 Ark., 257; Duval v. Marshall, 30 ib., 231.
This suit seems to reverse the usual order. It is an effort to transfer an unfinished administration to Arkansas for completion, and to call the administrator of the domicile to account as surviving partner of the testator, when it is well settled that an administrator cle bonis non cannot call the former administrator to account for money in his hands, and he is responsible for that alone’ to the creditors, distributees and legatees for account and upon his bond. Williams v. Cubage, 36 Ark., 307; Finn v. Hempstead, 24 Ark., 117; Oliver v. Rottaken, 34 Ark., 144.
A surviving partner when administrator, or executor, it would seem, must settle with the court to whose jurisdiction he belongs, unless some peculiar circumstances existed, as where there are domestic creditors, and the assets under the control of the surviving partner were within the jurisdiction of the court which' granted the ancillary administration and were liable to be wasted or to misapplication by the surviving partner; then, it would seem that an ancillary administrator might call upon equity for a receiver or invoke the ordinary remedies which administrators may ask, in a proper case, against a surviving partner who was wasting or misapplying partnership assets. But no such case appears here. It is not pretended that Francis M. Ivy has any unconverted partnership assets. This feature of the case, calling for an account, seems to have been abandoned at the hearing, and is expressly abandoned here, by plaintiff in his brief.
As to debts in Texas, we shall treat the general allegation just like a general allegation of fraud, without specifications. It will not be presumed that any probate court would grant an order to sell real estate and divest the heir or devisee, or those claiming under them, of title, on the statement that the administrator was “informed that there were unpaid debts.”■ But this court will not collaterally inquire into, or question the power and jurisdiction of the probate court to grant administration. That court might err in improperly granting administration, but we could only review it on appeal or writ of error. But it might be a question for us to determine now and here, whether collateral aid shall be granted to an unnecessary administration. For in this case the will charges the legacy upon the "land and there seems to be no necessity for an administration on Ivy’s estate to collect Wallace’s legacy, if lapse of time has not barred it. The lands devised to Francis M. Ivy, it seems, went into his hands clothed with an express trust, and when the personal assets are exhausted, it might be subjected, if not before, to the payment of this legacy. West v. Williams, 15 Ark., 682. And it has been held that where lands are devised, charged with the payment of a legacy, that the legatee may proceed against the lands in rem., without waiting for the executor to exhaust the personal assets. Sand v. Champlin, 1 Story Rep., 326. See, also, Wright v. Den, 10 Wheaton, 204; Lewis v. Darling, 16 Howard (U. S.), 1; 2 Binney Rep., 525; 6 ib., 395; Redfield on Wills, chap. 13, sec. 57, par. 7, 8, 9, 10, p. p. 558-9.
It would seem from the drift of authorities that even where the personalty has been exhausted, in payment of debts, leaving a legacy unpaid, for which the realty might have been liable, the legatee has a right of subrogation against the heir, and to subject the realty, or compel contribution in equity. This seems to be a well-established branch of equity jurisdiction. 1 Story Eq. Jur., sec. 565. It is true that it has been held in New York, under its peculiar statutes, that where an executor, who is the devisee of realty, has exhausted the personal estate in paying debts, the legatee of an unpaid legacy, is not, on that account, entitled to a priority over legal liens which other creditors of the executor have acquired upon such realty, by judgment. Wilkins v. Harper, 2 Barber, N. Y., ch. 338. Same case affirmed by court of appeals, 1 N. Y, 586.
The application of this principle in Arkansas may well be doubted where our laws make realty assets in the hands of an administrator, subject to debts, with right of possession, and to rents and profits in the administrator. While it is true t]ie personalty is the primary fundout of which debts are paid,, yet, in some sense, their payment out of the personal estate is in exoneration of the realty, and that would seem, upon ordinary equitable principles, to give to an unpaid legatee a right of subrogation, in this state, even where the legacy was not charged on the realty. That was not, however, a question in the New York case, which involved a mere contention for priority, between the judgment creditor of the devisee, and the legatee whose legacy was not charged on the land devised. In the case of Hall v. Brewer, 40 Ark., 434, a bill was filed by a fourth-class creditor, whose claim had been in litigation during the entire pendency of the administration, and when the creditor recovered judgment, and had his claim classed, the administration had been closed and the land turned over to the heirs and the personal property distributed. This court held that the death of a decedent fixes a lien upon lands for the payment of debts, and they pass to his heirs and devisees charged with such debts, and where a creditor’s debt has been duly probated and not paid, or has come into existence too late to be probated, or after the administration has been closed, he may, in equity subject them in the hands of the heirs or devisees or their alienees with notice, to payment of the debts. The same principal was settled in Wilson v. Harris, 13 Ark. Under the authority of these cases-, and others like them, it would seem that the remedy of the legatee and Texas creditors, if any, was complete in equity without the expensive and tedious process of an Arkansas administration, and in a tribunal fully competent to marshal assets, settle priorities, remove clouds and grant final relief. But in this case, no party entitled to this relief is before the court as plaintiff or defendant. Nothing remains tangible in this case, as a" reason for administering the Arkansas lands, but Wallace’s legacy, as no specific debts are shown. That legacy was allowed to remain uninforced for over eighteen years, before the complaint was filed, and now, at the end of twenty-four years, as far as we are informed, no administrator has ever been appointed on his estate, and yet no one but an administrator could collect or give to Thomas Ivy’s administrator a lawful acquittance for this legacy. Lemore v. Rector, 15 Ark., 436; Pope v. Boyd, 22 Ark., 535; Anthony v. Peay, 18 Ark., 30; Worsham v. Field, ib., 448; Pryor v. Ryburn, 16 Ark., 672; Slocum v. Blackburn, 18 Ark., 319; Atkins v. Guice, 21 ib., 173; Martin v. Tyree, 41 ib., 314.
These questions, which are suggested, and not directly presented, in this case, would properly arise whenever an administrator of Wallace’s estate, or any unpaid creditor of Thomas Ivy, with properly established and authenticated claims from the Texas tribunal, shall present their complaint, in equity, to subject the lands, devised to Francis M. Ivy, to the charge of the unpaid debts and legacy. Then it will be time enough to determine whether Francis M. Ivy, and those claiming under him, hold the lands in trust, subject to debts and legacies, or whether they hold adversely. Also, whether or not they are innocent purchasers, and whether or not the demands are stale, or barred by limitation.
All that it is necessary to decide, and all we do decide, now, is:
First — In advance of the presentation of a copy of the will and probate thereof, duly certified to the probate court of the county in Arkansas where the lands of Thomas Ivy lie, and the order of that court that the will shall be recognized and admitted of record as wills in this state are recorded, as provided in sections 6582-3, Mansfield's Digest. In advance of the establishment in the probate court, granting the ancillary letters, of unpaid debts and legacies, by certified transcripts or otherwise; and after so great lapse of time, it is not to be presumed that any probate court would cloud the title of lands of a citizen of this state by granting an order to sell. Mays v. Rogers, 37 Ark., 155; Stewart v. Smiley, Mans. Op.
Second — Until some reason or necessity is shown more than appears in this record, the plaintiff below is not entitled to bring any possessory action for the lands in advance of an order to sell.
Third — That, while it is true, as contended, that if a plaintiff is entitled to any relief, it should not be denied him because he may have mistaken the tribunal, yet, as the plaintiff does not show that he is entitled to the relief prayed for, the court was not bound to change the whole object and scope of his complaint, in order to grant relief as at law, even if he had been entitled to a judgment for possession.
For these reasons, the decree of the court below is erroneous, the plaintiff below having shown no ground for either equitable or legal relief. The decree is reversed, and a decree will be entered here dismissing the complaint and for costs.
Hon. B. B. Battle did not sit in this case. | [
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James R. Cooper, Judge.
In this criminal case, the appellant appeals his conviction for the charge of driving while intoxicated (DWI). The appellant was charged and convicted in Conway County Municipal Court of DWI, and was charged but acquitted of refusal to take a breathalizer test. The appellant appealed his conviction for DWI to the Conway County Circuit Court. At the subsequent circuit court trial, the State moved in limine to prohibit any testimony concerning the breathalizer test. This motion was granted on the grounds that this testimony would not be relevant to the issues before the court in the circuit court trial. The appellant was found guilty by a jury and fined $500.00. From that decision, comes this appeal.
For reversal, the appellant argues that it was error for the trial court to refuse to allow the appellant and the appellant’s witness to testify concerning the arresting officer’s refusal to give the appellant a breathalizer test. Also, the appellant alleges that the court erred in refusing to allow him to cross-examine the arresting officer concerning his refusal to administer the breathalizer test.
As to the first point, a brief account of the facts surrounding the appellant’s arrest and subsequent charge of DWI is necessary. The appellant was stopped at approximately 1:00 a.m. on January 23, 1983, after his vehicle was allegedly observed swerving across the center line of the highway. The arresting officer testified that the appellant failed a field sobriety test. The appellant was taken to the police station where he refused to submit to a breathalizer test until his attorney could be summoned. Some 30 to 40 minutes later, the appellant’s attorney arrived and questioned the arresting officer. The appellant claims that, at this time, he and his attorney requested that the officer administer a breathalizer test. The officer allegedly refused because too much time had passed since the arrest.
The appellant argues that the State’s Motion in limine should have been denied and the testimony about the officer’s alleged refusal to administer the breath test and his subsequent charge against the appellant of refusal to take the test should have been admitted. The appellant’s defense was that he was not intoxicated, but that the arresting officer had treated him harshly and filed the charges against the appellant as a result of his attitude toward the appellant rather than a belief that the appellant was actually violating the law by operating his automobile while intoxicated. The trial judge ruled that the evidence was not relevant in that the State’s case would stand or fall on the subjective observations of the policeman and the test, which was not administered was not relevant. We disagree and therefore we reverse.
The appellant asserts that this excluded evidence was relevant. The Uniform Rules of Evidence, Rule 401, Ark. Stat. Ann. § 28-1001 (Repl. 1979), defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” One fact which was of consequence in this case was the credibility of the arresting officer. The appellant argues that if the arresting officer had actually believed that the appellant was intoxicated then he would have given the breathalizer test when the appellant’s attorney arrived at the station. Also, the officer’s alleged refusal to administer the test, and his subsequently charging the appellant with refusal to submit to the test, is some evidence that would tend to prove the arresting officer’s less than courteous attitude toward the appellant. The appellant’s refusal to submit to the test until his attorney arrived was a right we feel he plainly had. He had been arrested and charged with a crime and he was made aware that he had the right to the presence of an attorney. His assertion of this right should not be used against him at this time, and there is no evidence that the passage of 30-40 minutes would have affected the test results. The appellant alleged that the officer making the arrest treated the appellant abusively in that he used harsh language with the appellant, and physically abused the appellant while leading him into the police station. The officer’s alleged refusal to administer the test, and the charge of refusal to submit to the test, regardless of the fact that the appellant was later acquitted of this charge, is evidence which the jury should have been allowed to consider as bearing on the officer’s credibility.
As to the second point, counsel for the appellant should have been allowed to go into the facts related to the breathalizer on cross-examination as it would tend to impeach the officer’s direct testimony that the appellant was obviously intoxicated at the time of his arrest.
We therefore reverse and remand for a new trial consistent with this opinion.
Reversed and remanded.
Cracraft and Corbin, JJ., agree. | [
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James R. Cooper, Judge.
This is an action to foreclose on two promissory notes given in exchange for the purchase of shares of stock in a corporation, Con-Co, Inc. On October 21, 1981, the appellants entered into an agreement with the appellee and her husband, James Congleton, for the sale of stock in Con-Co, Inc. According to their contract, two promissory notes of $22,500.00 each were given to the appellee in exchange for 200 shares of stock in the corporation. The promissory notes called for 60 monthly payments. The appellants made approximately 8 payments and defaulted, and the appellee brought this action. The circuit court granted judgment against the appellants for the balance due on the notes, and also found that the appellants were the majority shareholders in Con-Co., Inc., by virtue of this transfer. From that decision comes this appeal.
For reversal, the appellants argue that the notes given in exchange for the stock were not valid consideration in that Ark. Stat. Ann. § 64-205 (Repl. 1980) prohibits the giving of promissory notes in exchange for newly issued stock in a corporation. The appellants argue that since Nancy Congle-ton originally owned 150 shares of stock and her husband owned 150, and the appellee sold the appellants 200 shares of stock, and since there is no evidence of a sale or tiansfer of stock from James Congleton to his wife, the 50 shares he owned, which were transferred to the appellants were cancelled and reissued in the name of the appellee. The trial court addressed this issue and held that the statute referred to above did not apply to this transaction. We agree.
Although there is no evidence in the record that such a transfer of stock from the appellee’s husband to her occurred, this does not necessarily mean that it did not occur or that the appellee could not transfer stock without cancelling this stock and having it reissued. The sale of the stock to the appellants was not a new issue by the corporation but rather a sale by the stockholders. The shares of stock in Con-Co, Inc. that were transferred to the appellants had already been issued and were fully paid. The transfer of these shares of stock was simply a sale of personal property. The trial court correctly determined that Ark. Stat. Ann. § 64-205 (Repl. 1980) did not apply to the facts of the case at bar.
The appellants argue that Taylor v. Gordon, 180 Ark. 753, 22 S.W.2d 561 (1929), is analogous to the case at bar. However, in Taylor, a bank loaned the purchasers of stock the money to purchase stock in the bank and received as payment a promissory note. There, the court held that the bank became the equitable owner of the stock and its attempt to make a sale of the stock to Gordon and Lucas, the purchasers, by taking their notes for the purchase price was in violation of the law. In Taylor, the stock was never delivered, but was issued by the bank and retained by it, thus there was never an exchange of consideration as the bank was both the seller and buyer. Here, however, the transaction was not a sale by the Congletons to themselves, but rather a transfer of the shares of stock in exchange for something of value, the appellants’ promissory notes.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
This is an appeal from a Pulaski County Circuit Court decision affirming an Arkan sas Alcoholic Beverage Control Board decision denying an application for an off-premises beer permit.
Appellant filed an application with the Arkansas Alcoholic Beverage Control Board which was denied by the Board’s Director. On appeal, the Board was unable to reach a majority decision, voting two for reversal of the Director’s decision and two against, with one abstention. The Board then issued an order reinstating the Director’s decision, substituting different findings of fact for those of the Director. Appellant appealed the Board’s order to the Pulaski County Circuit Court, Second Division, which affirmed the Board’s action. We reverse and remand.
The circuit court’s decision is clearly erroneous. Ark. Stat. Ann. § 48-1302. la (Repl. 1977), specifically requires that “all action by the Arkansas Alcoholic Beverage Control Board shall be by a majority vote of the full membership.” In this instance, a majority of the Board failed to either reverse or affirm the Director’s decision. There is no evidence in the record that a majority of the Board’s full membership took any action regarding appellant’s application. In the absence of a decision by a majority of the Board’s membership, there is nothing for the circuit court to review. Therefore, the Board’s decision which was reviewed by the circuit court was not a valid, appealable order.
We reverse and remand to the trial court with directions to reverse its decision and remand the matter to the Arkansas Alcoholic Beverage Control Board for consideration of the Director’s denial of appellant’s application and his findings of fact, pursuant to the provisions of Ark. Stat. Ann. § 48-1314 et. seq.
Reversed and remanded.
Cooper and Cracraft, JJ., agree. | [
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Battle, J.
On the 17th day of May, 1883, J. O. Lee was killed by a train of appellant. His daughter and sole heir, Mary "Wilkerson, brought this action for damages, which she claims she suffered by reason of his death.
There was some evidence, introduced on the trial, tending to show that J. G. Lee was, on or about the 17th day of May, 1883, walking on the track of the defendant, the St. Louis, Iron Mountain & Southern Railway Company, south of Little Rock; that while there a train of defendant ran, approaching him in the same direction he was walking, at the rate of fifteen miles an hour; that he was seen by the fireman of the train about one-half mile ahead, before the train reached him ; that at the time he was first seen he was staggering and had the appearance of being very drunk, and was walking on or near a trestle of the road, which was one hundred feet long and twelve or fifteen feet high; and that the train ran against him while on the trestle and killed him, without giving him any warning save the ringing of a bell a short time before the train struck him.
Appellant concedes that the evidence shows that plaintiff, Mary Wilkerson, was Lee’s daughter and sole heir; that he was a widower, about fifty years old, and sometimes became intoxicated.
Many instructions were given by the court to the jury. Among them was one given at the request of plaintiff, over the objection of defendant, in the words following:
“The plaintiff moves the court to instruct the jury that if they believe from the evidence the employes of the defendant railroad, on the, 17th day of May, 1883, discovered that J. O. Lee was upon the track of said railroad in a position where, by reason of the nature of the track at that place, or by reason of Lee’s condition, or both, it was not reasonable to suppose that he would or could get off the track in time to have saved himself, then it was their duty to use all reasonable appliances, if in their power, to save his life. And if the jury believe from the evidence that they had it in their power so to do, and that they negligently failed to use such reasonable appliances, whereby said Lee was killed, they must find for plaintiff', although they may find that he was guilty of contributory negligence in placing himself in such position.”
The jury were required, at the request of plaintiff and defendant, to make certain special findings, and they returned the same as follows: To plaintiff’s interrogatories they answered as follows :
First — Did the fireman see Lee upon the the track staggering when the train passed around the curve?
Ansioer — Yes.
Second — Was the manner and conduct of deceased, when first seen and up to the time he was struck, such as to lead a reasonable person to believe that he could not or would not escape from danger ?
Answer — Yes.
Third — Was there anything in the condition of the deceased, Lee, apparent to the observation of those upon the train, or anything in the condition of the track where Lee was walking, which should have led a reasonable man to. suppose that Lee would not or could not get off the track ?
Ansioer — Y es.
To defendant’s interrogatories they answered as follows i
First — Did deceased see the train in time to have gotten off the track before it struck him ?
Answer — No.
Second, — Did deceased have timely warning by .the ringing of the bell of locomotive, or otherwise ?
Answer — No.
Third — Had deceased stepped off the track before he was struck?
Answer — No.
Fourth — Were there any obstructions near or at the place where deceased was struck, that would have prevented deceased from stepping off the track in time to avoid the danger ?
Answer — Yes.
Fitfh — Was deceased drunk or sober at the time he was struck?
Answer — Intoxicated.
The jury returned a verdict in favor of plaintiff for-1712.50.
The defendant then filed its motion for a new trial, which was overruled. It saved exceptions and appealed.
The true rule and well settled doctrine governingin cases like this is stated in R. R. Company v. Pankhurst, 36 Ark., 376, thus: “ One who is injured by the mere negligence of another, cannot recover at law or equity any compensation for his injury, if he, by his own or his agent’s ordinary negligence or willful wrong, contributed to produce the injury of which he complains, so that, but for his concurring and c'o-operating fault, the injury would not have happened to him, except where the direct cause of the injury is the omission of the other party, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences of such negligence. ”
Lee had no legal right to be on that part of the railroad track of appellant where he was walking at the time he was killed. It was not at a public crossing, and was no part of a public highway. It was made solely for the running of the cars and train of appellant, and the fact that persons did walk upon it, however frequently, did not ■change it’s character and convert it into a highway for footmen. Being on the private property of appellant, he was where he should not have been, and was bound to use every precaution, every dilligence, every care, against any danger which might have happened to him there. Finlayson v. R. R. Co. I Dill., 579.
This was his duty. The fact that he was drunk did not relieve him of it. “Drunkenness,” it is said, “ will never ■excuse one for a failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances. Men must be content, especially when they are trespassers, to enjoy the pleasures of intoxication cum periculis. When they make themselves drunk, and in that condition wander upon a railroad track, and ■sustain an injury, they will not be heard to plead their intoxication as an answer to the charge of negligence,” or as a reason why the railroad company should be held responsible to them for damages. R. R. Co. v. Pankhurst. 36 Ark. 371; Chicago, etc., R. R. Co. v. Bell, 70 Del., 102; Toledo, etc., R. R. Co. v. Riley, 47 Ill., 514; Herring v. W. & R. R. R. R. Co., 10 Ind., 402.
If the employes of a railroad company in charge of its train see a man walking upon its track at a distance ahead sufficient to enable him to get out of the way before the train reaches him, and are not aware that he is deaf or insane, or from some other cause insensible of the danger, or unable to get out of the way, they have a right to rely on human experience and to presume that he will act upon the principles of common sense and the motive of self-preservation common to mankind in general, and will get •out of the way, and to go on without checking the speed of the train until they see he is not likely to get out of the way, when it would become their duty to give extra alarm by bell or whistle, and if that is not heeded, and it becomes apparent that he will not get out of the way, then, as a last resort, to check its speed, or stop the train, if possible, in time to avoid disaster. If, however, the man seen upon the track is known to be, or from his appearance, gives them good reason to believe that he is insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, they have no right to presume that he will get out of the way, but should act upon the hypothesis that he might not or would not, and should use a proper degree of care to avoid injuring or killing him. Failing in this, the railroad company would be responsible for damages, if by the use of such care, after becoming aware of his negligence, they could have avoided injuring him. Lake Shore, etc., R. R. Co. v. Miller, 25 Mich., 279; R. R. v. Freeman, 36 Ark., 46; R. R. Co. v. Pankhurst, 36 Ark., 376.
The instruction objected to by appellant was properly given. ■ Comment on the facts of the case is unnecessary. It is sufficient to say there was some evidence to sustain the verdict and special findings of the jury. It is not for us to decide whether we would return a like verdict or believe the evidence was properly weighed.
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George K. Cracraft, Judge.
Appellant appeals from his conviction of manslaughter, for which he was sentenced to four years in the Department of Correction, after a jury found him guilty of unlawfully and recklessly causing the death of Byron Joe Whaley. In support of its position the State introduced evidence that on the evening of May 1,1982, a vehicle driven by the appellant and being operated in a reckless manner passed several vehicles on the highway at speeds in excess of 90 to 100 miles per hour. The State presented both eye-witness and expert testimony that while the appellant’s vehicle was traveling at an extremely high rate of speed he attempted to pass a tractor-trailer, lost control of the vehicle, swerved onto the shoulder of the road, spun around and crashed into the tractor-trailer. Byron J. Whaley, a passenger in the appellant’s vehicle, was killed in the crash.
The appellant does not contend that the finding of guilt is not supported by substantial evidence. He argues only that by admitting some of the evidence considered by the jury in arriving at its verdict the court committed prejudicial error. We do not agree.
In support of its charge that the appellant had acted recklessly the State introduced evidence to show that he had been drinking heavily on the afternoon before the accident. Several witnesses testified to the large amount of alcohol the appellant had consumed. One witness testified that appellant had consumed “a half a case of beer.” Officer Gentry who investigated the accident testified that he spoke with the appellant immediately after the accident and advised him of his Miranda rights. He stated that he smelled alcohol on his breath and asked him if he had been drinking. He stated that the appellant admitted to having had only two or three beers. Over appellant’s objection the officer was permitted to testify that he had asked the appellant to submit to a blood alcohol test but appellant had refused.
Appellant argued in the trial court, as he does here, that as the evidence disclosed that the officer did not advise the appellant that if he objected to the taking of his blood a breath or urine test might be taken at his own expense, all testimony with regard to the test was inadmissible under the provisions of Ark. Stat. Ann. § 75-1045 (Repl. 1979). Ark. Stat. Ann. § 75-1045(a) (Repl. 1979) provides that any person operating a vehicle on the highways of this state shall be deemed to have given consent to the taking of a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while driving a motor vehicle under the influence of intoxicating liquor. It further provides that the law enforcement agency by which the arresting officer is employed shall designate which of those tests shall be administered but grants to the arrested person the alternative of having additional tests made as provided in paragraph c(3) of that statute which follows:
The person tested may have a physician, or a qualified technician, registered nurse or other qualified person of his own choice administer a complete [chemical] test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests [taken] at the direction of a law enforcement officer.
This argument was rejected by the court in Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976). There the court said:
In the instant case appellant never took the test, and, therefore, there were no results to exclude. He refused to submit to the test because, according to his own testimony, he thought he would be declared guilty no matter what the outcome revealed. It naturally follows that appellant, in not having any test results introduced into evidence against him, was not deprived of the right the statute cited is intended to insure. Thus this contention is wholly without foundation.
Other arguments appellant makes in his brief were not raised in the trial court. (Counsel for the appellant on this appeal did not represent him in the trial court.) Under our well established rule we will not consider issues raised for the first time on appeal.
The appellant next argues that the trial court erred in permittinga lay witness to express his opinion that the high rate of speed at which appellant’s vehicle was traveling could have attributed to the accident. Appellant contends this opinion was not admissible under Unif. R. Evid. 701 and 704.
The witness testified he saw the accident and that the appellant passed him at a high rate of speed approximately 300 yards from where the accident occurred. He estimated that appellant’s vehicle was traveling between 90 and 100 miles per hour when he passed him.
This witness was then asked:
Q. In your opinion do you think that the high rate of of speed could have attributed to the accident?
A. Yes, very definitely.
DEFENSE COUNSEL: Your Honor, I move that that be stricken from the record. His opinion is . . . there is not proper foundation laid to qualify him as an expert witness to give that opinion.
THE COURT: The objection is overruled and exceptions are noted.
Unif. R. Evid. 701 provides that a witness not testifying as an expert may give opinion evidence only if it is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. Clearly it is not required in all circumstances that a witness be qualified as an expert in order to state an opinion. Unif. R. Evid. 704 states that opinion testimony which is otherwise admissible is not objectionable because it embraces an ultimate fact issue. The objection made at trial was not that the lay witness’s opinion did not meet the criteria of Unif. R. Evid. 701, but only that the witness had not been qualified as an expert. The appellant in his brief argues to us, however, that it was error to permit the witness to testify or to express an opinion on an ultimate issue of fact to be determined by the jury, and relies upon the standards set forth in Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983). We do not need to determine whether Ethridge applies because that was not the basis of the objection made to the trial court. It is well established that a timely objection must be made to preserve an alleged error for review and the only specific objection available on appeal is the specific objection made in the trial court. All other specific objections are waived. Wilson v. State, 9 Ark. App. 213, 657 S.W.2d 558 (1983).
The appellant finally argues that the court erred in admitting the testimony of a state trooper as to the speed at which the appellant’s vehicle was traveling at the time of the accident because he had not been properly qualified as an expert. It is well established that the determination of an expert’s qualifications as a witness is within the sound discretion of the trial court and, absent an abuse of this discretion, his decision will not be reversed on appeal. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975); Ray v. Fletcher, 244 Ark. 74, 423 S.W.2d 865 (1968). Here the officer testified that he had been a state trooper for fifteen years and had worked many accidents during that period. He stated that he had worked several accidents quite similar to the one involved in this action. He stated that he had received training in investigation of accidents and that the training coupled with his years of experience enabled him to determine how accidents occur and speeds of automobiles from skid marks and other physical evidence. In his testimony he carefully outlined the physical evidence observed at the scene and described the various measurements taken by him in ivestigating the accident. He based his opinion upon the measurement of skid marks, squall marks and other physical evidence and determined the speed of appellant’s vehicle to be between 80 and 100 miles per hour. We find no abuse of discretion on the part of the trial court in determining the officer to be sufficiently qualified as an expert witness to give the above opinion evidence.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from a decision by the circuit court reversing the Alcoholic Beverage Control Board’s grant of a private club permit to the Sundowners Club. Application for the permit was made by the appellant, Georgette Fontana, as managing agent for the club. She was operating a restaurant in Hope, Arkansas, and the permit would authorize the serving of alcoholic beverages to the club members in a portion of the restaurant which the club would lease.
A hearing was held before the director of the ABC Board and the permit was granted. That decision was appealed to the full Board by the prosecuting attorney. Evidence was heard from the applicant and from public officials and private citizens. With one member abstaining, the Board voted unanimously to grant the permit. The prosecuting attorney and the chief of police of Hope then appealed to circuit court, naming the ABC Board as respondents. The court reversed the Board’s decision and Mrs. Fontana and Sundowners appealed. The ABC Board was allowed to intervene in this court.
On appeal we review the entire record of the administrative agency and affirm its decision if it is supported by substantial evidence and is not arbitrary, capricious or characterized by an abuse of discretion. Carder, ABC Director v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982); Citizens Bank v. Ark. State Banking Board, 271 Ark. 703, 610 S.W.2d 257 (1981). Determining whether the Board’s decision was arbitrary or capricious involves a limited inquiry into whether it acted with willful and unreasoning disregard of the facts and circumstances of the case. Carder, ABC Director v. Hemstock, supra, First National Bank of Paris v. Peoples Security Bank, 1 Ark. App. 224, 614 S.W.2d 521 (1981); Arkadelphia Federal S & L Ass’n v. Mid-South S & L Ass’n, 265 Ark. 860, 581 S.W.2d 345 (1979). Courts rely heavily upon the principle that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying issues. Independence S & L Ass’n v. Citizens Fed. S & L Ass’n, 265 Ark. 203, 577 S.W.2d 390 (1979). A reviewing court may not set aside a Board’s decision unless it cannot conscientiously find from a review of the entire record that the evidence supporting the decision is substantial. First Nat’l Bank of Paris v. Peoples Security Bank, supra.
Mrs. Fontana presented evidence to the Board that she operated the Sundowners Club in Prescott for about seven years and it had recently moved to Hope. The club wanted to serve wine, beer, and mixed drinks with meals. It would not have a bar, and no drinks would be served without a meal. She testified she was currently operating a restaurant called “The Branding Iron’’ in Hope and had many customers from Hope, Emmett, and Prescott who had expressed a desire to be able to have an alcoholic beverage with their meals.
Hempstead County has a population of about 25,000. All parties agreed that there were four private clubs located in the county. The opponents to the application insisted that this was enough. However, when examined carefully, it becomes clear that the availability of these is limited. According to the evidence, two of the clubs serve blacks predominantly. The other two are the Hope Country Club, which has a $350 initiation fee and a $40 monthly charge, and the VFW Club, which is for veterans only. Therefore, of the four private clubs in the county, only two are available to whites and both of them have obstacles to membership that could prevent many ordinary citizens from joining. In addition, of the four clubs, only the Hope Country Club has a restaurant in conjunction with it, although the other clubs do serve food in the form of sandwiches. The Sundowners Club would be primarily a nice supper club with an affordable membership fee of $5.00 per year, where the ordinary citizen could get a good meal accompanied by a glass of wine or other alcoholic beverage.
The opponents of the permit did not question Mrs. Fontana’s moral or legal qualifications to hold the permit as manager for the club. There were some questions about the club’s membership list, and while the list was seven years old, it was evident that the club had more than the 100 members required by Ark. Stat. Ann. § 48-1402(j) (Repl. 1977). The trial judge pointed out that there were only a few Hope residents on the list; however, the restaurant had been located in Hope only a few months at the time the application was filed for the permit.
The primary opposition to the issuance of the permit was based on grounds that four clubs were sufficient to serve the area; that law enforcement problems would increase; that motels in the area would apply for permits if this one was granted; and that the population of the county had voted it “dry” so it would be in direct opposition to the wishes of the people of the county to issue the private club permit.
The Arkansas Supreme Court dealt with the issue of private clubs in dry counties in the recent case of Morris v. Torch Club, Inc., 278 Ark. 285, 645 S.W.2d 938 (1983), where it reversed and remanded the finding of a lower court that held that the permit for serving alcoholic beverages in private clubs in dry counties was not authorized under Act 132 of 1969. While the decision of the Supreme Court recognized that a private club might be operated in violation of the Act, the argument made by the appellees that it “just wasn’t right” to have a private club permit in a dry country was rejected in the Morris case.
The argument that several motels in the area, which had bars built into them when they were originally constructed but had never been granted private club permits, would also expect to be granted permits if this one was granted, was rejected by the Board. The evidence showed that appellant’s restaurant was not part of any motel, although it was in close proximity to one; but the motel and the restaurant were distinct and separate business entities and had different owners.
The fear of law enforcement officials that alcohol related crime would increase appears from the record to be based upon speculation. The officials offered no facts or figures to support this argument and the chief of police of Hope admitted he had no problems with the Hope Country Club.
The decision of the Board in this case was based on the evidence received. The question on review is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Westerman v. Singleton, 9 Ark. App. 120, 653 S.W.2d 152 (1983). The reviewing court cannot displace the Board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo; and the question of whether the Board’s action was arbitrary or capricious is only applicable when the decision is not supported on any rational basis and is made in disregard of the.facts and circumstances. First Nat’l Bank of Paris v. Peoples Security Bank, supra.
We think there was substantial evidence in the record to support the Board’s finding that granting this private club permit was in the public interest. Therefore, we reverse the decision of the trial court in regard to the issuance of the permit and remand this matter for that court to affirm the Board’s decision.
Reversed and remanded.
Cracraft and Cooper, JJ., agree. | [
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Smith, J.
The complaint alleged: That “on December 29, 1882, plaintiff, John Gaines, was in the employ of defendant railroad company as a brakeman ; and while at work uncoupling cars on a through freight train, at the town of Malvern, Ark., on said day, by reason of a defective draw-head, he had the middle finger of his left hand so badly mashed that it had to be amputated — to his damage, $5,000.”
The answer denied specifically all negligence on defendant’s part, and charged contributory negligence on the part of the plaintiff.
The following evidence was then introduced by plaintiff.
The plaintiff' stated: “On December 29, 1882, I was braking for Conductor Keeby, in employ of defendant. We left Texarkana that day at noon, on through freight. * * * At Arkadelphia the conductor directed me that on arriving at Malvern to set out of the train five or six •cars. When the train stopped at Malvern, I went for the purpose of uncoupling a box car of the Texas and Pacific Railway Company from an Iron Mountain car. The 1. and P. car toas numbered 1871¡., and was, I believe, empty. It was about the tenth in the train from the engine. There were thirty-six cars in all. I was front brakemau, and it was my duty to uncouple these cat’s. I went between the two cars and tried to uncouple them while the train was standing still, but the pin was fast.
“ I then gave the signal with my lantern to the engineer to.back the engine, so as to slack the cars, and stepped again between the two cars. As the cars backed 1 caught hold of the fin and attempted to pull it; I raised it about one and a half or tioo inches, when the end caught, and before I could get it out the draw-heads of the two cars came together, and the draw-head of the T. and P. car was driven in so far that my hand, which ivas on the pin, was caught between the head of the pin and the draw-head of the T. and P. car, and was crushed and held fast. I tried, while my hand was so held, to signal the engineer to pull forward, but he misunderstood me, and continued to back, shoving backwards the whole train. My hand was held this way nearly five minutes, until the engineer took a turn forward, and I got out. * * * Immediately I got my hand loose, I went to the side of the car, stooped down and swung my lantern ■up under the spring of the draw-head to see what was the matter. I saw the spring of the draw-head back of the draw-head on the T. & P. ear was broken so as to let the draw-head slip in, and that was the reason my hand was ■caught between the coupling and the dead-wood.
“ I could not tell whether the break in the spring was nexo or ■old. Had the spring been in good condition the draw-head could not have been driven far enough in to catch my ■hand between the draw-head and dead-wood. As brakeman it was my duty to couple and uncouple cars, as ordered by the conductor, to set brakes, to watch the couplings, and to look for hot boxes. I did not regard it my ■duty to go alongside of the train when we stopped, to see that nothing was out of order; I supposed that was the •conductor’s duty. * * * I had been braking at that time eighteen months, and was then twenty-two years old. ■* * * I went to the Employes’ Hospital at St. Louis, where the hospital surgeon cut off my middle finger, which I have in my pocket (here plaintiff' produced his finger and displayed it to the jury). The finger was taken off at the joint next the hand. I suffered greatly at the time of the accident, and for a week or ten days after. I stopped five weeks at the hospital. I did no work until May, when I tried braking again for a month, and on account of the weak and painful condition of my hand I could not keep it up, and had to quit. I was getting $60 per month braking, but now I can only earn $25 per month digging wells in Texarkana. Since leaving the hospital my doctor’s bill has amounted to $50. I did not see on car 1874, “ B. 0.,” or any other mark indicating that the car had been inspected and found in bad order at Texarkana. This train was made up at Texarkana, and I think all the cars were empty except one flat-car, which was loaded with cotton.” .
Witness then showed the manner in which he took hold of the coupling pin at the time, which was by catching his finger around the pin below the head, and holding his hand in a perpendicular position.
J. H. Keeby testified for plaintiff: “In December, 188*2, I was conductor on defendant’s train. Plaintiff was a brakeman on my train. I did not see the accident to Gaines. I saw him after he had received the injury. The couplings were good; there were no defects, for I examined the cars after he was hurt. I have no personal knowledge of the manner of the injury. It was a good, level track. It was an ordinary draw-head, but from the manner it was put in it would slip back to the dead-wood. The dead-wood is a block of wood used for the protection of the car. The The draw-head mentioned above was on the box-car. The dead-wood projected out about six inches from the face of the ear. I did not see the manner in which the train was backed in order to make the uncoupling. The condition of the draw-head was not as safe as if it had been in the usual condition. I did not see the draw-head until after the accident. This was a through freight train, and was made up by the yardmaster at Texarkana. I was in the freight office at Malvern when the accident happened.
“ The duties of a brakeman are, to stop the train, couple and uncouple cars, set out and take on cars, examine and inspect trains whenever they have an opportunity — to see if anything is out of order — flag and switch and do whatever they are told by the conductor. Plaintiff was uncoupling cars when he was hurt. When hurt, he had been in defendant’s employ two or three months, and was a capable and competent man. He had coupled and uncoupled cars frequently before this. The couplings to the cars which plaintiff was uncoupling, were good, for I inspected them ten minutes after the accident. They were in the usual and ordinary condition. The draw-heads were the ordinary draw-heads used upon all freight cars, and were loose. They work on a spring and play in all directions. They give a little each way, and are made so to enable the ears to follow the curves of the track and the surface of the ground. They must have “ give ” to break the force of cars coming together. Coupling and uncoupling cars is a dangerous business, and requires care and caution. When performing their work, it is the brakeman’s duty doing the work, to signal the engineer. They are supplied with lanterns; plaintiff had one and it was lit. It was a dark night, the night of the accident. It was not raining. I do not remember if it was cloudy or not. It is usual to couple and uncouple cars at all hours of the night, and in all kinds of weather, and this is a part of a brakeman’s duty.
“ The brakemen have no opportunity to make more than a general examination to see that nothing is out of order as they pass along, their inspection is confined more especially to the wheels. In speaking of couplings, I allude to them as distinct from the draw-heads, and when I say these draw-heads were loose, I do not say that they were-in the same condition as the draw-head which caused the injury to plaintiff. Had I known the condition of this one, I would have warned plaintiff that it was loose. When we use the term loose in reference to a draw-head, we do not mean the way it is usually hung. Coupling is more dangerous than uncoupling cars. The draw-head by which plaintiff was hurt belonged to a T. & P. Ry. car, numbered 1874. I do not know that the draw-head was loose prior to leaving Texarkana, it might have been made so after leaving Texarkana, from the weight and jolting of the train. I cannot say where it was done.”
J. H. Morgan testified: “Have practiced medicine twenty-five years. Erom my knowledge, derived from examining health and mortuary reports, I should say that the expectancy of life of men like plaintiff, of same age and constitution, would be from forty-six to fifty years old. A railroad man’s expectancy of life would be much less. It has been established at seven years.”
F. O. Hentz testified for defendant: “I am foreman in the car repairing department of defendant, and the Texas & Pacific Railway, at Texarkana. Have been in that business fifteen years. My duty, as foreman, is to repair cars. The car inspector inspects the cars on the track, and if in bad order marks them “ B. 0.” on the side. The yard-master then sets them out on the repair track, and I have them repaired. After being repaired, the “ B. 0.” is rubbed out, and “D.” put on them.”
Pat Callahan testified: “In December, 1882, and for some time prior and subsequent, I was joint yard-master of defendant and the Texas & Pacific Railway Company, at Texarkana. It is my duty to make up trains for both roads. I first examine cars to see if they are in good order ; am governed by the car inspector’s mark. My custom and instructions are never to put into a train a bad order car. I made up the train going north December 29, 1882. I never heard that any bad order car was put into the said train on that day. I have had experience as a brakeman on defendant’s road, and know their duties and instructions as to coupling and uncoupling cars. It is not their duty, and they are, by the rules' of the company, particularly forbidden to uncouple cars while in motion. The instructions require them to wait until the car stops, but brakemen do not always obey the instructions. The time to pull the pin is when the slack is given sufficient to pull the pin. I know from experience, that it is possible for a brakeman to get his hand caught between the coupling-pin and the deadwood while uncoupling cars, simply by negligently catching hold of the pin, and in drawing it, allowing it to slant wrongly. My hand was caught that way once, when there was no defect in the draw-head of the car. The way to take hold of the coupling-pin in uncoupling is, to catch it from above with the fingers around it, holding the hand perpendicular over it.”
Connors testified: “Am joint car inspector of defendant’s road and the Texas & Pacific Railway Company at Texarkana, and have been since 1878. Luke Hickey and I were both filling that office in December, 1882. Ve take it alternately, one week in the day time and one week in the night time. Christmas week, 1882, December 29, I watched- at night and Hickey in the day time. Our duties as car inspectors are, to inspect thoroughly every car that comes into the yard from either road, looking them all over for defects or injuries, to see whether they are in good condition or need repairs. I look them over, examine draw-heads and springs, and see that springs are not broken or anything out of order. If I find anything out of order, I repair it myself if I can, with the aid of two men that are under me. If not, I mark ‘B. 0.’ on it, to show it is in bad order. The yard-master, on seeing this mark, sets it out on the repair track for repairs. I do not recollect inspecting Texas & Pacific car No. 1874, in December, 1882. We keep no record of cars inspected and found in good order, but I do know I inspected all the ears coming in while I was on duty that month, and marked all of those I found in bad order, as above stated. All cars that come in while I am on duty, I inspect carefully, and I did that in December, 1882.”
Luke Hickey testified : “ I am, and have been, since 1881, car inspector of defendant and the Texas & Pacific Rail way Company at Texarkana, jointly with Connors. When he is not on duty I am, and vice versa.
“I mak.e my inspection as soon as the cars come in; examine to see that nothing is broken or out of order, and if out of fix and I can repair them with my two men, I do so. If I can not, I mark them ‘ B. 0.’ for the yardmaster to have them repaired. I do not remember anything about car 1874, but I inspected carefully all cars coming in while I was on duty.”
This is all the evidence there was on either side.
The charge of the court was favorable to the plaintiff, and the jury gave him a verdict for $3,500.
The assignments in the motion for a new trial are:
First — The verdict is not sustained by the evidence.
Second — That it is contrary to law.
Third — That it is excessive, and shocks one’s sense of justice.
Fourth and fifth — Misdirection of the court.
This action, like all others brought by the servant against his master for personal injuries sustained in the course of his employment, is based on actual negligence in the defendant, or in those who represent it. The negligence here complained of consisted in using a freight car with a defective draw-head. Prom the testimony adduced in behalf of the plaintiff, it may be doubted whether any seririous defect existed in the draw-head, or in any of the appliances connected therewith; and whether the proximate cause of the accident was not the plaintiff’s own recklessness in attempting to uncouple the car while it was in motion, contrary to an express regulation of the company, which must have been known to him, as it related to one of his principal duties and he had been in the company’s service for some time.
In Lockwook v. C. and N. Ry. Co., 55 Wisc., 50, such evidence of contributory negligence on the part of a brakeman, who was killed in the act, was held sufficient to justify a ■compulsory non-suit in an action for his death.
But regarding these matters as settled by the verdict, viz.: That there was in fact such a delect as is alleged, and that the plaintiff was duly careful, the question yet mains whether the defendant is liable on account of such defect. The master is not an insurer of the servant’s safety, nor does he guarantee that the machinery, tools and instrumentalities he furnishes may not prove defective. He only undertakes to use reasonable care to prevent such results. L. R. and F. S. R. Co. v. Duffey, 35 Ark., 602; St. L., I. M. and S. Ry. v. Harper, 44 ib., 529.
The presumption is that the master has done his duty by furnishing safe and suitable appliances for the performance of his work. And when this is overcome by positive proof that the appliances were defective, the plaintiff is met by a further presumption that the master had no notice of the defect and was not negligently ignorant of it. It is not sufficient to show that the plaintiff' was injured, and that the injury resulted from a defect in the machinery ; but he must go further and establish the fact that the injury happened because the master did not exercise proper care in the premises. Shearman & Redfield on Negligence, sec. 99; Thompson on Negligence, sec. 1053; Wood on Master and Servant, see. 382; Pierce on Railroads, 373, 382; 3 Wood’s Railway Law, 1505; St. L., I. M. & S. Ry. v. Harper, supra; K. C., S. & M. R. R. v. Summers, 45 Ark., 295; L. R. & F. S. Ry. v. Townsend, 41 ib., 382; Hayden v. Smithfield Manf’g Co., 29 Conn., 548; DeGraff v. N. Y. & H. R. R. Co., 76 N. Y., 125; E. St. L. P. & P. Co. v. Hightower, 92 Ill., 139.
The court refused a prayer of the defendant, which correctly stated the law on this subject; and the error was no cured by other directions. There is no proof that the railroad company, or any of its employes, had any knowledge of any defects in the coupling apparatus of the car or its fastenings prior to the accident. The car did not belong to the defendant, but to a connecting carrier. It was duly inspected on the same day the accident occurred and pronounced to* be road-worthy by being placed in the train. There is no reason to suppose the car inspector was incompetent or that, on this particular occasion, he performed his duty carelessly. The plaintiff himself could not say whether the breáis in the spring was recent or of long standing. The spring might have been broken after the train left Texarkana. There is not a particle of evidence that the defendant omitted any duty which it owed to the plaintiff.
Now, notice of the alleged defect, or what amounts to the same thing, the means of knowledge which the company failed to use, was a material fact which was necessarily involved in the verdict. Consequently, as no testimony was given from which the jury could infer that the company knew, or might by reasonable diligence have discovered the defect in time to remedy it and prevent the casualty, the verdict is not supported by sufficient evidence.
And even had it been shown that the drawhead was-loose or broken before the train was sent out, and that the defect was discoverable upon a proper inspection, yet the plaintiff- cannot recover for the negligence of his fellow servant. Here, again, the court committed an error to the prejudice of the defendant; for it refused to tell the jury that the car inspector and the brakeman were fellow servants. They are not only employed and paid by the same corporation, but their separate services have an immediate common object — the moving of the trains. Neither works under the orders or control of the other; and each takes the risk of the other’s negligence in the performance of his service. Randall v. B. & O. R. Co. 109 U. S., 478.
Oar inspectors are not placed in charge of a separate department of the company’s business, nor do their duties require any special mechanical skill. They make a general cursory examination of cars, upon arrival at the yard, so as to detect any patent defects. That they are co-servants with the trainmen has been frequently decided. Hodgkins v. Eastern R. Co., 119 Mass., 419; Mackin v. B. & A. Railroad, 135 ib., 201; Besel v. N. Y. C. & H. R. R. Co., 70 N. Y., 171; Railroad Co.’s v. Webb, 12 Ohio St., 475; Railroad Co. v. Fitzgerald, 42 ib., 318; Railroad v. Foster, 10 Lea. (Tenn.), 351; Smith v. Flint and Pere Marquette Ry., 46 Mich., 258; 3 Woods, 313.
Indeed, we know of no cases which hold the contrary view, except Tierney v. M. & St. L. Ry. Co., 33 Minn., 311; S. C. 24 Am. L. Reg., 669, decided by a divided court, and Cooper v. Railroad Co., 24 W. Va., 37.
Atchison, Topeka and Santa Fe R. Co. v. Wagner, 33 Kansas, 660, S. C. 21 Cent. L. Jour., 53, is precisely similar to the preseut case; the negligence imputed to the railroad company being the use of a passenger coach with a draw-bar connected with a defective spring. The following propositions are there announced, which we approve of as sound law:
“ 1. An employe of a railroad company, by virtue of his employment, assumes all the ordinary and usual risks and hazards incident to his employment. 2. As between a railroad company and its employes, the railroad company is-not an insurer of the perfection of any of its machinery, appliances or instrumentalities, for the operation of its railroad. 8. As between a railroad company and its employes,. the railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in furnishing to its employes reasonably safe machinery and instrumentalities for the operation of its railroad. 4. It will be presumed, in the absence of anything to the contrary, that the railroad company performs its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has not performed its ■ duty. 5. And where an employe seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employe to prove such insufficiency, but it will also devolve upon him to show either that the railroad company had notice of the defects, imperfections or insufficiencies complained of, or that by the exercise of reasonable and ordinary care and diligence, it might have obtained such notice. 6. And proof of a single defective or imperfect operation of any of such machinery or instrumentalities resulting in injury, will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or alleged defect, imperfection or insufficiency in such machinery or instrumentalities. 7. As between a railroad company and its employes, the railroad company is not necessarily negligent in the use of defective machinery, not obviously defective, but it is negligent in such cases only where it has notice of the defects, or where it has failed to exercise reasonable and ordinary diligence in discovering them and in remedying them.”
And in Atchison, T. & S. F. R. Co. v. Ledbetter, decided by the same court, 8 Pacific Rep., fill, the syllabus is as follows :
“ In an action by a yard switchman against a railroad company, in whose employ he had been, for injuries alleged to have resulted in consequence of a defect in the draw-bar -of a car, or in some of its accompanying appliances, held: that no recovery can be had against the railroad company except by proof of negligence on its part, and that it devolves upon the plaintiff to prove the negligence, and to prove all the facts which constitute or make apparent such negligence; and therefore, when it was not shown that the railroad company had any knowledge of the defect existing in the draw-bar or in some of its accompanying appliances prior to or at the time of the injury, or that such defect had existed for any considerable length of time, nor what was the nature or character of the defect; that it was obvious or manifest, or could have been discovered by the exercise of reasonable care and diligence, or by any of the tests employed by car inspectors; nor that the car had not been properly inspected by the car inspector at the yard where the injury is alleged to have occurred; held,: that no negligence is shown on the part of the railroad company and that no cause of action against the railroad company has been proved.”
In Skellenger v. C. & N. Ry. Co., 61 Iowa, 714, the trial court, after the testimony was all in, tending to prove a state of facts somewhat similar to the present case, directed a verdict for the defendant; and its action was approved on appeal.
The judgment is reversed and the cause remanded for further proceedings. | [
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Melvin Mayfield, Chief Judge.
The appellant was charged with burglary committed by entering a residence in Jacksonville, Arkansas, with the purpose of committing theft of property. He was tried by the judge without a jury, found guilty, and sentenced to five years in the penitentiary. His sole point on appeal is that the evidence is not sufficient to support his conviction. We agree.
A lady testified that on August 3, 1982, she took her daughter to the doctor and upon returning to her home she noticed that the kitchen window had been broken out and glass was “everywhere” inside the kitchen. She said her black and white portable television set was missing and that she had not given anyone permission to enter the house or take the television. The police were called, and they came to the house and made an investigation. The window above the kitchen sink was broken out and that area was dusted for fingerprints. There was one piece of the broken glass found on the ground outside the house and directly under the kitchen window. The police lifted a latent fingerprint off this piece of glass and put it on a card which was appropriately labeled.
The officer conducting the investigation testified that he talked to the neighbors to find out whether they had seen anyone suspicious about the neighborhood, but they had not. The case remained open, and in October of 1982 the appellant was at the Jacksonville Police Department on an unrelated matter and was advised that he was a suspect in this matter. He was fingerprinted and the State Crime Laboratory made a positive identification of his right thumbprint as that of the person whose print was taken from the piece of glass from the house broken into August 3,1982.
The fingerprints were introduced into evidence at the trial of this case. The chief latent prints examiner for the crime lab testified that the appellant’s thumbprint was identical to that on the piece of glass. The appellant did not testify and the case was submitted upon the evidence outlined above. On appeal in criminal cases, whether tried by judge or jury, we will affirm if there is substantial evidence to support the finding of the trier of fact. Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). The appellant concedes the rule, but says the evidence here falls short of the standard.
Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980); Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). The fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 211, 523 S.W.2d 377 (1975). Substantial evidence, in a case depending upon circumstantial evidence, simply means that the proof must go beyond presenting the jury a choice so evenly balanced that a finding of guilt must rest, not on testimony, but on conjecture. Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981), quoting from Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).
In this case, when the victim returned home, the glass in her kitchen window was broken out and her television set was missing. The only evidence to connect the appellant with the crime was the piece of glass the police found on the ground, outside the house, with the appellant’s thumbprint on it. In order to be guilty of burglary a person must enter or remain unlawfully in an occupiable structure of another person with the purpose of committing an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). We do not believe that the evidence here is sufficient to support a finding that the appellant was ever inside the victim’s house or that he ever touched her television set. A finding that either occurred, it seems to us, would require a choice based more upon conjecture and supposition than upon evidence in the case.
Reversed and dismissed.
Cracraft and Cooper, JJ., agree. | [
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Smith, J.
This appeal is from a judgment rendered in favor of Holcomb against McRae as administrator of John A. Crossland. The action was upon a promissory note, made by the deceased and alleged to have been lost or mislaid. Hpon the trial, one Powers, not a party to the action, was introduced as a witness for the plaintiff and was permitted, against the objection of the defendant, to give evidence of sundry transactions and conversations had with Crossland, touching the matter in controversy. The ground of the objection was that Crossland was dead, and that the witness was interested in the issue to be tried. The ruling of the court, in the admission of the testimony, is the only error complained of.
Powers swore, in substance, that he was the agent of Holcomb, who lived in Texas, and that, as such agent, he had sold to Crossland a tract of land in Nevada county for $560; that Crossland received the customary bond for title, paid one-fourth of the purchase money in cash, and for the residue made his three notes, payable to Holcomb and due respectively at six, twelve and eighteen months; that witness retained the notes for collection, and about the date of the maturity of the first note, Crossland called to pay it; that witness took the notes from his safe, the three being pinned together, computed the interest to date, indorsed the amount thereof, $6.50, on the first note, as he thought, received the $146.50, and surrendered the note; that about the time the second note matured, Crossland directed him to procure a deed from his principal, as he wished to pay off the whole debt, and when the deed arrived he was informed by McRae, then Crossland’s attorney, and now his administrator, that the title bond and balance due on the land had been left with him ; that witness could find but one note — the third — which was surrendered to McRae on payment of the principal and interest, $158.50, and the deed was delivered; that witness transmitted the money to his principal, who immediately wrote back that another payment was still due; that witness at-once informed McRae that there was a mistake, one note being still uupaid, and requested him not to give up the deed to Cross-land until the mysterious disappearance of the second note could be looked iuto; that witness soon after saw Crossland and demanded the unpaid installment, aud Crosslaud replied: “Produce the note and I will pay it;” that witness did not know that the note was in Crossland’s possession until his death, which occurred soon afterwards, and witness was unable to say how it came into his hands, but supposes that when Crossland paid the first note, he surrendered the first and second also; that Crossland had never paid but three installments, nor had witness intended to part with the second note; and that witness considered himself morally and legally bound to make good the loss to his principal if the present action should go against him. The second note was produced in court, having been found among the papers of the intestate, and bore upon the back of it, in Powers’ handwriting, the indorsement, “ interest, $6.50,” which he evidently intended to place upon the first note.
McRae was the only witness that was examined, and he corroborated the statements of Powers, so far as his own connection with the transaction extended, but went on to say that when he reported to his client what Powers had said about the mistake and that one payment was still due, Crossland claimed to have paid the note.
Section 2, in schedule to the constitution of 1874, is as follows: “In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried; provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.”
It is admitted that the exclusion of Powers is not. de-manded by the words of this provision, but it is contended that so much of his testimony as relates to conversations and transactions between himself and the .deceased is incompetent, if the provision is to be interpreted according to its spirit and reason. This question is virtually settled by Bird v. Jones, 37 Ark., 195, and Nolen v. Harden, 43 Ark., 307, where it was decided that the persobs excluded from testifying as to transactions or statements of testators, intestates and wards are the executors, administrators and guardians on one hand, and their antagonists in the suit on the other, and that persons who are neither pursuing, nor pursued by, the fiduciaries are not included in the prohibition. The object was to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. To use the language of Dr. Wharton in his Law of Evidence in Civil Issues, section 466, when one of the parties to a litigated obligation is silenced by death, the other is silenced by law.
The constitution establishes a general rule that makes all persons who are of sufficient intelligence and not otherwise disqualified, competent witnesses, irrespective of their participation in the suit, or their interest in the result. But to this general rule there is one exception, viz.: Where the action is by or against an executor, administrator, etc., and the witness is a party to the record, he shall not speak of personal transactions with the deceased, where, by the nature of the case, the privilege of testifying cannot be reciprocal. But mere interest in the issue to be tried does not disqualify.
The °ffi-ce a proviso is to restrain or modify the enacting clause of a statute. Hence “the general rule of law, which has always prevailed and become consecrated almost as a maxim in the interpretation of statutes, that when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms. In short, a proviso covers special exceptions only out of the enacting clause; and those who set up any such exception must establish it as being within the words as well as within the reason thereof.” U. S. v. Dickson, 15 Peters, 165, per Story, J.
Our constitutional provision is identical in purport, and very nearly in language, with section 858 of the revised statutes of the United States. In Potter v. National Bank, 102 U. S., 163, such evidence as Powers delivered in this ■case was declared admissible. It is there said:
“ The first clause of that section shows that there was in the mind of congress two classes of witnesses — those who were parties to the issue — that is, parties to the record; and those interested in the issue to be tried — that is, those who, although not parties to the record, held such relations to the issue that they would lose or gain by the direct legal operation and effect of the judgment. * * * The proviso * * * excludes only one of the classes described in its first clause, — those who are, technically, parties to the issue to be tried — and we are not at liberty to suppose that congress intended the word ‘party,’ as used in that proviso, to include both those who, according to the established rules of pleading and evidence, are parties to the issue, and those who, not being parties, have an interest in the result of that issue.”
The same conclusion has been reached by other courts in construing similar statutes. Tooker v. Davis, 47 Mo., 140; Wiltingham v. Smith, 48 Ga., 580; Bragg v. Clark, 50 Ala., 363; Blood v. Fairbanks, 50 Cal., 420.
Judgment affirmed. | [
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Cockrill, C. J.
The appellants were the owners of a cotton gin and grist mill combined. The building was set upon posts, leaving the space beneath open. In this open space they dug a pit for their cotton press. The appellee’s cow fell into the pit and was killed. He sued the appellants and obtained judgment for $40, the value of the cow. The appeal is prosecuted to reverse this judgment.
It seems that the bill of exceptions does not contain the •entire charge of the court to the jury, but only such parts as the appellants saw fit to except to, together with their requests for instructions which were rejected by the court.
The entire charge should be set out. It would be manifestly unfair, in many instances, to judge the charge by an isolated part of it; and in order to determine correctly whether it was error to refuse to instruct the jury as requested, we should be informed what instructions were •given. It often happens that a request to charge the jury is properly refused, though in itself unobjectionable, because the same phase of the case is already covered in the intended charge. It is not error to refuse to multiply instructions on a single point, and as every reasonable presumption is indulged in favor of the action of the trial ■court, we infer, in a state of record like this, that the court ■declined to give the instructions asked, if they are in them-■unobjectionable, because the jury were already sufficiently instructed on the points touched by them. Error to reverse a j udgment must appear affirmatively, otherwise everything is presumed to have been righfully done.
It is not necessary, however, to indulge in any presumptions in order to affirm the judgment in this case. The pit, which the appellants dug and into which the cow fell, in the night time, was close to the highway; it was unenclosed and was without signal of warning or protection ; ■moreover, cotton seed and corn had been left by the appellants scattered in the neighborhood of it, so that, in the language of one of the witnesses, it was not only a stock trap, but was actually baited for the game. The court instructed the jury in effect, that if they should find such a state of facts from the proof, the appellants were guilty of negligence which would render them liable for the injury •done. This proposition cannot be controverted.
The' appellee was not guilty of contributory negligence in turning his cow out upon the commons remote from i,he gin (L. R. & F. S. Ry. v. Finley, 37 Ark., 562), and there was no testimony upon which to base the instructions asked upon that point.
No objection was made at the trial to the introduction of any testimony, and the point now pressed cannot be made here for the first time.
Let the judgment be affirmed. | [
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Tom Glaze, Judge.
Appellant appeals from his second degree forgery conviction for which he was sentenced to eight years in prison with four years suspended. He raises two points for reversal: (1) that the trial court erred in ruling that voluntary intoxication is a mitigating factor in setting punishment instead of a complete defense, and (2) that substantial evidence was not presented to show he had the requisite purposeful state of mind to commit forgery.
Appellant’s case was tried to the trial court, and he bases his first contention on remarks made by the judge at the trial’s conclusion. The judge said, in part, that appellant had “about a three-week drunk coming down,” but he added that was “not a legal excuse and not justification. I do think it had some effect on mitigating or explaining the circumstances that went along with it.” Appellant argues the trial judge’s findings are contrary to the appellate court decisions in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978), and Johns v. State, 6 Ark. App. 74, 637 S.W.2d 623 (1982), wherein the Supreme Court and Court of Appeals held that voluntary intoxication is a defense to specific intent crimes when the intoxication negates the required intent. Of course, our Court, quoting from Olles and Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976), recognized that except in cases involving specific intent crimes, voluntary intoxication is not a defense, even though it may produce a form of “temporary insanity” or render the person charged unconscious of what he is doing. Johns v. State at 76, 637 S.W.2d at 624.
In the instant case, appellant was charged with and convicted of forgery — a crime which requires a “purposeful” mental state. See Ark. Stat. Ann. § 41-2302 (Repl. 1977). The Arkansas Criminal Code defines “purposely” as follows:
A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
Ark. Stat. Ann. § 41-203(1) (Repl. 1977).
Thus, in establishing his defense of intoxication, appellant was required to prove by a preponderance of the evidence that he could not have entertained or formed the necessary intent or purposeful mental state to commit forgery. See Johns v. State, supra. He simply failed to sustain that burden, and the trial judge so found. In this respect, the judge said:
Gentlemen, in reviewing the testimony and evidence presented here and the items that have been received into evidence, I think it is relatively clear to the Court that the Defendant passed the check that was forged. The issue is whether or not he knew it was forged at the time, knew it was bad. I think reviewing the evidence as a whole, it is likewise relatively clear Mr. Gonce knew he was fooling here with something that wasn’t any good, and in all likelihood, it was forged. (Emphasis supplied.)
The evidence, including appellant’s own testimony, clearly supports the finding that the appellant knew the check he uttered was forged. Appellant testified that he knew the woman who gave him the check was named April, yet she wrote a check payable to appellant for $168.50 and signed it “Veta Long.” He recalled that after receiving the check, he waited a day or two before he attempted to negotiate it. At that time, he and April drove to Springdale, Arkansas, to get some liquor and unsuccessfully attempted to cash the check at three different businesses. Appellant indicated that he then waited two days before he successfully negotiated the check at a liquor store. Appellant also testified on cross-examination that he suspected the check was forged before he cashed it, although on direct examination he denied any such suspicion. Throughout his testimony, appellant made no effort or attempt to mask his detailed knowledge of the events leading to his negotiating the forged check. In sum, appellant’s testimony and recollection of the circumstances surrounding the crime substantiates the judge’s conclusion that the appellant was aware the check he cashed was forged.
We are cognizant of that part of appellant’s argument that challenges the judge’s reference to intoxication as a “mitigating” circumstance. While we may agree such reference was erroneous, we cannot agree it was sufficient to reverse this cause in view of the clear, factual findings made by the judge. In other words, even if a trial judge gives the wrong reason for a ruling, we will not reverse if the ruling was right. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981); Keith v. Freeman, 43 Ark. 296 (1884).
Our disposition of appellant’s first contention essentially resolves his second argument as well. In this regard, he contends the evidence was insufficient to show that he had the requisite purposeful state of mind to commit forgery. One commits forgery in the second degree if he forges a written instrument that is a check. See Ark. Stat. Ann. § 41-2302(3)(a) (Repl. 1977); Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978); and Robinson v. State, 10 Ark. App. 441, 664 S.W.2d 905 (1984). A person forges a written instrument if with purpose to defraud, he draws, makes, completes, alters, counterfeits, possesses or utters any written instrument that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize that act. Ark. Stat. Ann. § 41-2302(1) (Repl. 1977).
We already have discussed the evidence presented to the trial court that supports appellant’s conviction. We have reviewed that evidence in the light most favorable to the appellee, and suffice it to say, we believe it is sufficient to sustain a conviction of forgery.
Affirmed.
Corbin, J., agrees.
Mayfield, C.J., concurs. | [
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Cockrill, C. J.
This case is ruled by the ease of Garrett Bros. v. Wade, ante.
The appellee’s property was held by a constable under execution. He applied to the justice of the peace, who-issued the writ, to file his schedule of exempted property and issue a supersedeas to restrain the sale. The notice required by the statute had not been served on the plaintiff in execution five days before the schedule was offered, and the justice refused to issue the supersedeas for that reason. The defendant thereupon filed an affidavit and bond for appeal to the circuit court to prevent the sacrifice of his exemptions. Winter v. Simpson, 42 Ark., 411. The creditor followed the case and resisted the right of exemption in the circuit court, where the matter was heard de novo, but the court awarded the debtor his exemptions, and the creditor appealed to this court. His only contention is that he had no legal notice of the debtor’s intention to claim his exemptions. As we have before decided, his voluntary appearance and resistance of the right of exemption was a waiver of notice.
Affirmed. | [
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Donald L. Corbin, Judge.
A Union County Circuit Court jury, upon the verdict of nine jurors, assessed a $1,047,850.20 verdict against appellant Jerry D. Franklin individually and a verdict of $4,950.00 against him and his co-defendant, J. H. Franklin, and co-appellant herein. We affirm.
Before opening statements and any testimony had been presented, counsel for appellants informed the trial court that a juror, identified as Perry Kinard, had been overheard by a witness for appellants in the restroom making the statement that “he hoped Franklin had a lot of insurance.” Appellants subsequently moved that the trial court continue the case to investigate any bias on the part of Juror Kinard; for a mistrial; or to excuse Kinard from the jury. The court responded as follows to these motions:
Gentlemen, I’ve found that you properly brought this to the attention of the Court. I’ve had one other experience in this and I did not act with regard to the juror. A juror was alleged to have talked to one of the witnesses and we had a request again for a mistrial and I did not grant that.
I do think, in reponse to Mr. Compton’s statement, that if there is the possibility that someone is tainted, certainly that it should be brought to the Court, and I’m willing to deal with that. I’m not too sure if dealing with it wouldn’t prejudice the remainder of the jurors at this point and create even more of a Pandora’s box once we open the door to that. I think the best thing to do at this point is to, again on the basis you’ve made your record, deny the motion for a continuance and mistrial.
I don’t feel inclined to excusing Mr. —
NICK PATTON: — Kinard.
THE COURT: — Kinard, it’s Mr. Perry Kinard — at this point for a number of reasons. It might well be that we should bring him in and talk to him, but I think that might even be prejudicial, so at this time I’m going to deny your motions, both for a continuance and a mistrial or that the juror be excused, and let’s proceed.
For reversal appellants contend that the trial court erred in refusing to grant their motion to excuse Juror Perry Kinard; to grant a mistrial; or to grant a continuance to further investigate any bias of Kinard.
Appellants rely on United States v. Dean, 647 F.2d 779 (8th Cir. 1981), modified on other grounds, 667 F.2d 729 (8th Cir. 1982), cert. denied, 456 U.S. 1006 (1982), which suggests that appropriate action by a trial court under these circumstances includes “a short continuance for further investigating, excusing the j uror and seating an alternate, or granting a mistrial.” Here, appellants argue that it is important to note that the case was submitted to the jury on interrogatories and that appellees prevailed on a 9-3 split of the jury. Appellants note that Juror Perry Kinard voted with the majority on each interrogatory and that his name was at the head of the list of each interrogatory response. Appellants argue that on these facts, the probability of Kinard’s expressed bias being influential in the overall outcome of the case is made manifest.
Appellees contend that no basis to excuse Juror Perry Kinard was stated by appellants and rely on this Court’s decision in Farm Bureau Mutual Ins. Co. v. Smith, 5 Ark. App. 37, 632 S.W.2d 244 (1982). There, appellees filed a motion for new trial based on an allegation of juror misconduct consisting of a statement said to have been made by one of the jurors during jury deliberations. The motion was accompanied by the affidavit of a juror who also testified at the hearing on the motion. The juror said, “it’s lawsuits like this that will make all our insurance premiums go up.” The trial court granted the motion for new trial and this Court reversed holding that the statement fell within the proscription of Uniform Rules of Evidence 606(b) and could not properly be considered as the basis for granting the motion for new trial. In addition, we noted that the statement was simply an expression of opinion on the merits of the appellees’ case.
It is well settled that in passing on the qualifications of jurors, the trial court has much latitude and discretion, and unless abused, its action will not be disturbed on appeal. Crouch v. Richards, 212 Ark. 980, 208 S.W.2d 460 (1948). Insurance is a fact of life in our society and jurors are cognizant that most operators of vehicles carry liability insurance of some kind. Appellants were sued by appellees in the amount of $4,067,392.22 for the alleged wrongful death of two middle-aged men who were each survived by a widow and small children. The trial court could have viewed the alleged statement of Juror Kinard as merely an expression of concern. The trial court heard the statements of counsel and was in a position far superior to ours to determine whether the granting of appellants’ motions was in order. Accordingly, we cannot say that the trial court’s denial of appellants’ motions constituted an abuse of discretion.
Appellants contend as their second point for reversal that the trial court erred in denying their motion for new trial pursuant to A.R.C.P. Rule 59. At the conclusion of the trial, appellants filed the motion alleging that the trial court abused its discretion in denying their original motions for a continuance to further investigate any bias of Juror Kinard; for a mistrial, or to excuse Kinard from the jury and this prevented them from having a fair trial. This motion was overruled by the lower court which recited in the order that “a hearing not having been requested by the parties, the matter is submitted to the court upon the motion for a new trial and the pertinent portion of the trial record . . .” The trial court found that appellants failed to comply with Rule 59(a)(2) and (c) in that their motion was not accompanied by an affidavit as required by the rule and that the allegation of bias as to Juror Kinard was unsupported and without merit.
Appellants and appellees rely on different sections of Rule 59 to support their conflicting positions. Appellants contend that Rule 59(a)(1) is the proper provision for our consideration which provides:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial.
On the other hand, appellees contend that the trial court was correct and that Rule 59(a)(2) and (c) is applicable which provides:
(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(2) misconduct of the jury or prevailing party
(c) Form of Motion. The motion must be in writing setting forth in separate paragraphs the grounds or assignments of error relied upon for a new trial. The grounds mentioned in section (a) (2), (3) and (7) of this rule must be supported by affidavits showing their truth and may be controverted in the same manner.
It is well settled that the granting of a new trial addresses itself to the sound discretion of the trial court, and this Court will not reverse unless it appears that the trial court abused its discretion. Smith v. Villarreal, 253 Ark. 482, 486 S.W.2d 671 (1972). We agree with appellees and the trial court that Rule 59(a)(2) and (c) is the proper provision under which this motion should have been presented to the trial court. We cannot say that the alleged statement of Juror Kinard indicates bias or prejudice. In the absence of any supporting affidavits, both this Court as well as the trial court would have to resort to speculation and conjecture to determine whether the statement “I hope Franklin has a lot of insurance” constituted bias in favor of either party. Appellants should have filed supporting affidavits together with a request for a hearing on their motion for a new trial. We cannot say that the trial court abused its discretion in denying appellants’ request for a new trial.
Affirmed.
Cooper and Glaze, JJ., agree. | [
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Judith Rogers, Judge.
The Department of Human Services appeals from the decision of the Baxter County Circuit Court reversing the agency’s finding of some credible evidence of abuse, as allegedly perpetrated by appellee, Pat Caldwell, and thereby directing the removal of appellee’s name from the State Central Registry. In addition to finding no credible evidence of abuse, the court also found that appellant’s policies gave rise to an irrebuttable presumption of abuse, and held that the appellant’s application of its policies under the facts of this case was arbitrary and capricious, and denied appellee due process of law. On appeal, appellant advances three issues, arguing that: (1) the trial court erred in holding that the hearing officer’s findings were not supported by some credible evidence; (2) the trial court erred in ruling that its policies created an irrebuttable presumption of abuse; and (3) the trial court exceeded its authority under the Administrative Procedures Act. We affirm.
On Thursday, September 22, 1988, appellee, who is an assistant principal at the Guy Berry Middle School in Mountain Home, paddled three fifth grade students who had been caught smoking on the playground. It was violation of school rules not only to smoke, but also to possess and strike matches on the school premises. In the presence of another teacher as a witness, the child in question received three licks with a wooden paddle, as did another one of the girls, while the third child only received one lick, as she did not actually smoke the cigarette. The girls were also instructed to write a report on smoking. The following afternoon, the child’s mother noticed bruises on her daughter’s buttocks. Feeling that the bruises had resulted from the spanking, the mother contacted school officials and then reported the paddling to the Baxter County Division of Children and Family Services as an incident of suspected child abuse. The assigned caseworker met with the child and her mother the next morning and took pictures of the child’s buttocks. Upon completing the investigation, which included interviews with appellee and school personnel, and after consulting with her area manager, the caseworker “substantiated” the allegation of child abuse and forwarded a written report of the investigation for recordation in the State Central Registry, as is required pursuant to Ark. Code Ann. § 12-12-508 (1987). Appellee then requested administrative review of this determination, seeking to expunge her name from the registry. A hearing was held on May 31, 1989, after which the hearing officer issued an order in which she found “some credible evidence” to substantiate the occurrence of abuse. Appellee appealed to the circuit court, which reversed the agency’s decision and directed that appellee’s name be stricken from the registry. This appeal followed.
As its first issue, appellant contends that the trial court erred in determining that the hearing officer’s findings were not supported by some credible evidence. We disagree.
Under the School Discipline Act, it is stated that any teacher or school principal may use corporal punishment in a reasonable manner against any pupil for good cause in order to maintain discipline and order within the public schools. Ark. Code Ann. § 6-18-505 (c) (1987). For our purposes here, “abuse” is defined as any nonaccidental physical injury inflicted on a child by anyone legally responsible for the care and maintenance of the child, or an injury which is at variance with the history given. See Ark. Code Ann. § 12-12-502(2) (1987). The question upon review in the circuit court is whether there is some credible evidence of alleged abuse to support the maintenance of the alleged abuser’s name in the State Central Registry. See Crawford/Sebastian County SCAN v. Kelly, 300 Ark. 206, 778 S.W.2d 219 (1989). Our review is similarly limited and, on appeal, we review the entire record in making this determination. Ark. Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 826 S.W.2d 816 (1992).
At the administrative hearing, appellee testified that she was in charge of the school that day because the principal was absent. She said that she learned of the infraction from another teacher, and that, before deciding to paddle the children, she called another administrator for advice as to the appropriate punishment, stating that it was a difficult decision since this was the first incident of smoking she had confronted involving children in that age group. Appellee questioned the girls both separately and together. She explained that, because she had taken the child to the hospital the previous year when she had broken her arm on the playground, she shared a special relationship with the child such that the conversation with her dealt more with disappointment than with anger over what she had done. Appellee testified that she followed the normal routine in administering the paddling, which included obtaining another teacher as a witness. The children were first made to tell the witness what they had done wrong, and when paddled, each were told to bend over and touch their knees, so that the buttocks would be easily hit, and to look forward, rather than at her, to hopefully prevent them from moving. She said that the child remained still while she was being paddled, and that she gave her three “average” swats. She denied that she paddled the child in anger, and said that she would not have expected the child to have bruised from the paddling that she gave. She felt that she had spanked her appropriately and had not abused her, and that the only thing she could think of was that the child was wearing a thin dress that day, •
The witness, Patricia Wallace, a fourth grade teacher, testified that she was positioned in front of the children as they were being paddled, and that the child displayed little reaction to the paddling. She said that she witnesses about half of the paddlings that occur at the school, and remarked that the licks in this instance were not out of the ordinary or excessive, but that they were rather light. She stated that appellee was calm, and not angry when she spanked these children. Michelle Ervin, the school nurse, saw the child on Monday, September 26th, four days after the paddling. In her report, she stated that she observed four very faint bruises which were about three quarters of an inch in diameter. She said that there was no swelling or other abrasions in the area. In her testimony, she said that she had to kneel and get about eight inches away before the bruises could be seen.
The child also testified at the hearing. She related that her behind was sore after the paddling, particularly when she sat down, and she felt that she was being hit hard when she was spanked. She said that she cried both before and after the paddling. She further testified that appellee was disappointed in her for smoking, but not angry.
The child’s mother testified that she learned of the spanking the next day when appellee directed the child to telephone her from school because the child had someone else sign her name to the note which was sent home to inform her of the paddling. She said that, when her daughter got home that afternoon, she looked at the child’s buttocks and observed bruises after the child had explained to her how badly the spanking had hurt and that it hurt to sit down. The mother agreed that the child deserved a spanking for what she had done, but she felt that the paddling was excessive, stating that “it was just too hard.” She said that her daughter bruised often, but “normal” in comparison to other children.
Jennifer Baker, the caseworker who investigated the report, testified that after she had completed the interviews she did not feel that appellee had been abusive. In substantiating the allegation, she said that the deciding factor was that marks were left from the paddling. She related that according to the department’s policy she must substantiate an allegation of abuse if bruises remain after a twenty-four hour period. Because of this policy, she stated that she was compelled to substantiate the allegation in this case since bruises had resulted from the paddling. John Hangen, Ms. Baker’s supervisor, who advised her in reaching a decision on this matter, testified it was the agency’s position that, “if there is bruising, it is abusive and with bruising, we substantiate abuse.” He said that his staff is directed to consider that discipline which results in bruising is excessive and physically abusive. He explained that the department needed to have a guideline, and that the guideline was that bruising is abusive.
Based on our review of the testimony and the photographs that were taken, we must agree with the decision of the circuit court reversing the agency’s determination. In so holding, we are impressed with the caseworker’s testimony that she did not feel that the paddling was abusive, and that substantiation was based solely on the evidence of bruising. We do not believe that one factor, standing alone and applied as a litmus test, without consideration of all the attendant circumstances, is an appropriate measure to be used in all cases for determining whether an allegation of abuse is to be substantiated. There must be some exercise of judgment, as this is an area which does not lend itself to facile determination. On this record, we uphold the circuit court’s finding of no credible evidence to support the allegation of abuse, and its finding that the punishment was not excessive or abusive.
Because of our holding on this issue, we need not address the remaining issues advanced by appellant which concern the trial court’s alternative ground for reversing the agency’s decision.
Affirmed.
Cracraft, C.J., and Danielson, J., agree.
On March 23,1991, we certified this case to the supreme court under subsections (1) (c) and (4)(b) of Rule 29 of the Rules of the Supreme Court and Court of Appeals. Certification was refused.
Ark. Code Ann. §§ 12-12-501 to -518 (1987), in effect at the time of these proceedings, has been repealed as amended by Act 1208 of 1991. The current subchapter dealing with child abuse reporting is codified at Ark. Code Ann. §§ 12-12-501 to -518 (Supp. 1991). | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision finding that Lowell Farns-worth was not an employee of either of the appellees within the meaning of the Workers’ Compensation Law. On appeal, appellant contends that the full Commission erred in affirming the administrative law judge’s decision that the appellant was not an employee of either appellee within the meaning of the Arkansas Workers’ Compensation Law. Because we agree with appellant’s argument that he is a county official and thus entitled to workers’ compensation, we reverse and remand.
Appellant was duly elected as constable for Cypert Township, White County, Arkansas. While acting as constable on September 13, 1986, appellant approached someone riding a three wheeler (ATV) on a county road to inform the individual that this was an unlawful act. The individual and appellant argued and a struggle ensued when appellant tried to arrest the individual. During the altercation, appellant sustained a gunshot wound to his abdomen. From this injury arose a workers’ compensation claim. Appellant argues that he is entitled to workers’ compensation under Ark. Code Ann. § 14-26-101 (1987) which requires all counties “to provide workers’ compensation coverage for their officials, employees, and municipal volunteer fire fighters.”
The Commission found that appellant did not fall within any of the three categories for whom the county is required to furnish workers’ compensation. It was also noted that the definition of “employee” cited by appellant in Ark. Code Ann. § 14-14-1202 and § 14-14-1206 did not relate to coverage for workers’ compensation purposes but rather involved personnel matters. We agree with the Commission that appellant was not an employee of the county as that term has been defined in Ark. Code Ann. § 14-14-1206 (19878) due to the fact he was not receiving a salary. However, we disagree in regard to the finding that appellant was not an “official” of the county.
Title 14 of Arkansas Code Annotated is entitled “Local Government”. Subtitle 2 under title 14 is entitled “County Government”. This subtitle is divided into chapters 13 through 26. The provisions regarding workers’ compensation are found in chapter 26, which provides workers’ compensation coverage for all county “officials, employees and municipal volunteer fire fighters.” Ark. Code Ann. § 14-26-101 (1987)(emphasis supplied). The term “officials” is not defined in this specific chapter; however, chapter 14, subchapter 13 is named “Officers Generally”. Pertinent to this case is Ark. Code Ann. § 14-14-1301(b) which is entitled, “County, quorum court district, and township officers”, and states:
(b) There shall be elected in each township, as preserved and continued in § 14-14-401, one (1) constable who shall have the qualifications and perform such duties as may be provided by law.
Also, this section includes other elected officials such as county judges, county clerks and sheriffs.
The first step in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. City of Fort Smith v. Tate, 38 Ark. App. 172, 832 S.W.2d 262 (1992). When interpreting an act, it is permissible to examine its title; parts of statutes relating to the same subject matter must be read in the light of each other. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). The workers’ compensation chapter is within the same subtitle, county government, as the chapter referring to “officers generally”. Constables' are included within this designation. The election of officers, and the term of years a constable shall hold office are set out in Ark. Code Ann. § 14-14-1302 (1987). All of these statutes involve the same subject matter. Based on the plain meaning of the words, the titles of the sections and the subject matter involved we find that appellant, as a constable, is an official of the county and thus covered by workers’ compensation. We therefore reverse and remand for an award of benefits not inconsistent with this opinion.
Appellant has advanced other points in support of his argument; however, based on this finding we need not address them.
Reversed and Remanded.
Cracraft, C.J., and Cooper, J., agree.
The Commission also found that appellant was not entitled to temporary total disability benefits due to the fact he was not receiving any wages upon which an award could be based. This finding has not been challenged in this appeal; therefore, we express no opinion on the validity of this finding. | [
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Elizabeth W. Danielson, Judge.
The appellant in this case, Jett Paul, is the biological father of D.J.M., a minor. On May 22,1991, the Montgomery County Probate Court granted a petition for adoption of D.J.M. that was filed by Johnny and Murphia Moore, the appellees herein. Appellant was a party to the adoption proceeding below and now seeks to have the decree set aside.
D.J.M. was born on July 10, 1987. Her biological parents were not married. The biological mother consented to the adoption of the child by the Moores, who took D.J.M. home with them the day after she was born. At that time, the identity of the natural father was unknown to the Moores.
A review of the procedural history of the case is necessary given the issues on appeal. The Moores first filed their petition for adoption in Pulaski County Probate, and an interlocutory decree of adoption was entered in October 1987. In January 1988, appellant filed a paternity action in the County Court of Pulaski County, by which he sought to have himself established as the natural father of D.J.M. The interlocutory decree of adoption from Pulaski County Probate became final in April 1988. In May 1988, the final decree was set aside and the interlocutory decree reinstated during pendency of the paternity action. In July 1988, the county court found Jett Paul to be the natural father of D.J.M. While the paternity matter was on appeal, the Moores dismissed their adoption petition in Pulaski County Probate and refiled in Montgomery County Probate in August 1989. The Moores and D.J.M. have lived in Montgomery County at all times pertinent to this appeal.
In March 1990, an order was entered by the Eighth Division Chancery Court of Pulaski County finding Jett Paul to be the natural father of D.J.M. In May 1991, the Montgomery County Probate Court entered the adoption decree that is the subject of this appeal.
Appellant’s first argument is that the Montgomery County Probate Court lacked subject matter jurisdiction over the adoption matter and that the order of adoption is therefore void. As support for his argument, appellant cites Ark. Code Ann. § 9-27-306 (Repl. 1991), which states in pertinent part:
(a) The juvenile court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter:
(3) Proceedings for establishment of paternity ....
(b) The juvenile court shall have exclusive jurisdiction of the following matters governed by other law which arise during pendency of original proceedings under subsection (a) of this section and involve the same juvenile.
(1) Adoptions under the Revised Uniform Adoption Act, as amended, § 9-9-201 et seq.
Appellant argues that because the paternity proceeding was on appeal to the juvenile court when the adoption petition was filed in Montgomery County Probate, the adoption matter should have been heard in the juvenile court in Pulaski County along with the paternity matter. At the trial below, appellant never sought to have the adoption matter transferred to juvenile court nor did he object to the probate court’s jurisdiction over the matter.
Subject matter jurisdiction of adoption proceedings has been vested in the probate court by statute. See Ark. Code Ann. § 28-1-104(a)(5) (1987) and Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978). While we agree that under the provisions of § 9-27-306(b)(l) the adoption matter should have been filed in or transferred to juvenile court, we do not agree that § 9-27-306 operated to oust from the probate court subject matter jurisdiction of the adoption proceeding so that the judgment was void. In Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), we stated:
The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court.... Failure to follow the statutory procedure in the exercise of its power constitutes reversible error but does not oust the jurisdiction of the court.
22 Ark. App. 144 at 149. The supreme court has said that unless the trial court has no tenable nexus whatever to the claim in question, the appellate court will consider the issue of whether the claim should have been heard there to be one of propriety rather than subject matter jurisdiction. Where the issue is one of propriety, the appellate court will not raise the issue sua sponte, and will not permit a party to raise it unless it was raised in the trial court. Horne Brothers, Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987), citing Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).
Because it certainly cannot be said that the probate court has “no tenable nexus” to adoption matters, we consider the issue of whether the Montgomery County Probate Court should have exercised jurisdiction in this instance to be one of propriety, not one of the existence of subject matter jurisdiction. The probate court’s failure to transfer the case to the juvenile court was but an irregularity in proceedings to which appellant failed to object. While the failure to transfer would constitute reversible error had appellant objected or brought it to the court’s attention, the court was not acting without jurisdiction in hearing the matter. Appellant’s failure to request a transfer of the case or otherwise question the propriety of the probate court hearing the case waived the issue and it may not be raised for the first time on appeal.
Appellant’s second argument on appeal is that the probate court erred in finding that appellant’s consent was not necessary and in finding that appellant had failed without justifiable cause to contact or support his minor child for a period of at least one year. See Ark. Code Ann. § 9-9-207(a)(2) (Repl. 1991). Appellant argues that because the interlocutory decree of adoption was in effect prior to the filing in Montgomery County, he was precluded from communicating with or providing for the care and support of his minor child. At the time of the hearing, the child was 31/2 years old and had been with the Moores since her birth. The judge noted that appellant’s mother testified that she had known of the adoption proceedings since September 1987. Appellant admitted that during those 3 Vi years he had never seen nor attempted to see the child. He also admitted he had not attempted to communicate with or support her in any way. Although he filed a paternity action, he never requested visitation with the child in the juvenile court or in any other court. Appellant suggested that fraud was perpetrated upon him in the adoption matter, but never challenged the interlocutory decree on these grounds.
Although we review probate proceedings de novo on the record, it is well settled that the decision of a probate judge will not be disturbed unless it is clearly erroneous. In making that determination, we give due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. In the Matter of the Adoption of Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984). The probate judge stated that the mere existence of an interlocutory decree of adoption would not operate to prevent the father from attempting to see his child and to support her in some manner. Under the particular circumstances of this case, we cannot say the probate judge erred in finding appellant’s consent was not necessary because he had failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child for a period of at least one year.
Appellant’s third argument is that the probate court violated his constitutional right to due process in its finding that custody of the minor child should lie with the adopting parents in the event the adoption was overturned. Since we are affirming the adoption, we need not address this argument.
Affirmed.
Jennings and Mayfield, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
The appellee Burt Hampton filed suit in the Columbia County Chancery Court against appellant Earl Godwin alleging that because of false and material representations, knowingly made by appellant, appellee entered into a contract to purchase a Magnolia, Arkansas, scrap metal business from appellant, and as a result thereof appellee sustained damages. In addition to a money judgment, the appellee sought an injunction to prevent appellant from continuing to engage in business in competition with appellee, contrary to the provisions of the contract.
Godwin answered with a denial of the allegations of the complaint. He also filed a counterclaim against Burt Hampton and a third party complaint against Burt’s father, appellee Troyce Hampton. The claims against the Hamp-tons alleged that they purchased the business as a partnership and Godwin sought judgment against them for $19,000.00 alleged to be due on the purchase price. An additional judgment for $100,000.00 was sought against the father on allegations that he caused Godwin mental anguish and monetary loss by attempting to abrogate the purchase agreement and by conspiring to prevent payment of the amount due on the purchase price. No motion was made to transfer any part of the case to law.
The chancellor found that one of the assets of the business was a crane which Godwin represented was operable and had been purchased for $25,000.00; that in fact it was not operable to do the job for which it was intended and Godwin had paid only $3,000.00 for it; that Burt Hampton agreed to a $25,000.00 increase in the purchase price of the business in reliance upon Godwin’s false representations about the crane; and that Hampton was entitled to damages for $22,000.00 which was the difference between the cost of the crane and what Godwin represented the cost to be. The court also found there was no partnership between the Hamptons, and that Godwin was not entitled to judgment against Troyce Hampton in any amount. The $22,000.00 due to Burt Hampton was offset against the $19,000.00 he owed on the purchase price, and Burt was given judgment against Godwin for $3,000.00. The chancellor found there was no proof that Godwin was competing against Burt contrary to the purchase agreement and, therefore, no ruling was made on the right to injunctive relief.
Godwin appeals and contends that the trial judge’s decision as to liability is not supported by a preponderance of the evidence and that the judge erred in failing to rule on the validity of the covenant not to compete.
The parties are in agreement that the elements of an action for fraud or deceit are (1) a false representation, normally of fact, by the defendant; (2) knowledge or belief by the defendant that the representation is false — or, what is regarded as the equivalent, that he has not a sufficient basis of information to make the representation; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it; (5) damage to plaintiff, resulting from such reliance. MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981).
There is evidence in the record to support the following factual summary. Burt Hampton was about 25 years old when he entered into the agreement to buy the scrap metal business from Godwin. Burt had no prior experience in this business and his father helped negotiate the purchase and obtain the financing for Burt. Burt lived next door to the business and the purchase had been under discussion for some time. In April of 1981 a price of $30,000.00 was agreed upon but just before Burt started operating the business, Godwin informed the Hamptons that he had purchased a crane from a scrap dealer in Dallas, Texas. Godwin told the Hamptons that he had paid $25,000.00 for the crane and that the sale price of the business would have to be increased to $55,000.00 to cover the amount paid for the crane. Both of the Hamptons testified that Godwin said the crane was operational and had been working on a yard in Dallas, and that in reliance upon his statements as to the crane’s cost and condition they agreed to increase the purchase price to $55,000.00.
Burt started operating the business on April 21, 1981, and the crane arrived a few days later. On April 80, 1981, apparently the same day the crane arrived, Burt gave Godwin three checks which left him owing $19,000.00 on the $55,000.00 purchase price. On July 10, 1981, a formal written agreement to buy and sell the business was signed by Burt Hampton and Earl Godwin.
The crane was an old scrap railroad crane. Its function was to crush cars and load and unload scrap metal. When it was delivered to the Magnolia yard the magnet generator had a burned out coil. The truck engine would not run and the crane had to be pulled from place to place by another vehicle. The motor that ran the boom up and down would run but a chain had slipped to the side of the chain drive sprocket and some sprockets needed to be rebuilt. There was evidence of other defects in the crane and, although there was testimony that it should have been repaired for less, Troyce Hampton, who testified to extensive experience in automotive repair, filed a lien against the crane for $79,554.39, which he said was for repairs he made to the crane that were absolutely necessary.
A stipulation in the record agrees that the manager and assistant manager of the Dallas scrap company that sold the crane to Godwin would testify that it had been taken out of operation by that company approximately seven months before Godwin purchased it; that it was taken out of service because it became inoperable; that it was sold to Godwin for $3,000.00 and would not have been sold for that price if it had been useable and in working condition; and that they discussed these facts with Godwin when he bought the crane.
Appellant’s contention that the trial judge’s decision as to liability is not supported by the evidence is presented in several ways. One argument is that Godwin increased the purchase price by $25,000.00 only because he decided the business was worth that much; but there was testimony, and the chancellor found, that Godwin said he was increasing the price because he gave $25,000.00 for the crane and “all he wanted was his money back.’’ It is also argued that Burt relied upon his father in making the purchase agreement and not upon representations made by Godwin. It was Burt’s testimony, however, that he would not have paid the extra $25,000.00 if Godwin had not told him this is what the crane cost and that all Burt would have to do would be to put gas and oil in it and it would be ready to go to work. These arguments simply present issues of fact which the trial judge decided in Burt’s favor.
Godwin also points out that 78 days from the day the crane arrived Burt went to his own lawyer’s office and signed a formal written agreement to buy the business. Thus, it is argued that both Burt and his father had ample opportunity to inspect the crane and determine its condition before the contract was signed and that this shows that Burt did not rely upon Godwin’s representations about the crane; or that his reliance thereon was not justified; or that any misrepresentation was waived. Cases relied upon include Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980); Vaught v. Satterfield, 260 Ark. 544, 542 S.W.2d 502 (1976); and Mid-America Truck & Equipment v. Mack Trucks, Inc., 519 F.Supp. 461 (W.D.Ark. 1981). The last two cases turn upon the sufficiency of the evidence. In Mid-America Truck and Equipment, the court held (1) there was no misrepresentation because the plaintiff had knowledge of the matter involved and did not rely on the defendant’s statement, and (2) plaintiff was not entitled to recover damages which it could have avoided after it learned of the matter involved. In Vaught, the court found that the plaintiffs not only failed to show that they did not know the facts claimed to have been undisclosed but also failed to show that those facts were not within the reach of their own diligent attention or observation. In other words, they did not prove justifiable reliance upon the representations made.
Appellant’s reliance upon Herrick v. Robinson, however, reveals the fundamental difference between Godwin’s position and that taken by the Hamptons. That case involved an attempt to rescind a contract and the court said:
One who desires to rescind upon the ground of fraud or deceit must, as soon as he discovers the truth, announce his purpose at once, adhere to it, and act with reasonable diligence, so that all parties may be restored to their original position as nearly as possible; if he continués to treat the property involved in the transaction as his own or conducts himself with reference to the transaction as though it were still subsisting and binding, he will be held to have waived the objection and will be as conclusively bound by the contract as if the fraud had not occurred.
Herrick v. Robinson, 267 Ark. at 585.
It is the Hamptons’ position that the complaint filed in this case by Burt did not seek rescission but was a suit based upon the common law tort of fraud or deceit. See MFA Mutual Ins. Co. v. Keller, supra. They also point out that one who has been the victim of fraud may either affirm the transaction and sue for damages, or disaffirm and sue for rescission. Stanford v. Smith, 163 Ark. 583, 260 S.W.435 (1924). The complaint filed by Burt very clearly elected to sue for damages. Equity had jurisdiction because the suit also asked for an injunction to prohibit Godwin from violating the covenant not to compete. Bailey v. King, 240 Ark. 245, 398 S.W.2d 906 (1966). Unless equity is wholly incompetent to grant the relief sought, objection to its jurisdiction is waived if no motion to transfer to law is made. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). However, no motion to transfer was made and in addition to jurisdiction to grant injunctions, equity is not wholly without authority to decide issues involving the elements of the tort of fraud or deceit. Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965).
So, the liability issue in this case is concerned with whether Godwin made the representations alleged; whether he knew they were false; whether Godwin intended for Burt to rely upon the representations; whether there was justifiable reliance by Burt to his damage; and whether any misrepresentation was waived. These are all questions of fact. It is our duty to affirm the factual findings of the trial judge unless they are clearly against the preponderance of the evidence, giving due rgard to his opportunity to judge the credibility of the witnesses. ARCP Rule 52(a); Smith v. City of Little Rock, 279 Ark. 4, 648 S.W.2d 454 (1983). We cannot say the trial judge was clearly wrong in deciding for Burt Hampton on the question of liability when we consider the evidence about Godwin’s representations as to the cost and condition of the crane; the evidence of the increase in the purchase price of the business; and the evidence that all but $19,000.00 of the $55,000.00 purchase price was paid on the day the crane arrived in Magnolia and before either of the Hamptons knew of its true condition or what Godwin had actually paid for it.
This holding would seem to moot the partnership issue, although we cannot find the trial judge clearly wrong on that issue either.
This leaves the question about the trial court’s failure to rule on the petition for injunctive relief on the covenant not to compete. Appellant suggests that the agreement may be against public policy, but the trial court found there was no proof that Godwin had gone into competition against Burt Hampton, and, therefore, “makes no decision as to whether said agreement is binding on the parties. ’ ’ We agree and also make no decision on that issue.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Battle, J.
On the -18th day of August, 1884, Dowell and Taylor Dowell commenced this action against Frank W. Tucker and others. They state in their complaint, among other things, as follows :
That, on or about the 9th day of September, 1865, Samuel Robinson departed this life intestate, leaving him surviving his daughter, Martha C. Dowell, wife of John Henry Dowell, as his sole heir at law, the said Martha G. being-the mother and the said John Henry Dowell being the father of plaintiffs. That Samuel Robinson, at the time of his death, was seized and possessed of real and personal property of the value of $40,000. That some time in March, 1868, Martha C. Dowell departed this life intestate,, leaving her surviving her husband, the said John Henry Dowell, and the plaintiffs, her sons, and sole heirs at law.
That on the 11th day of October, 1865, the said John Henry Dowell, at the county of Lawrence and before the probate court of said county, “procured to be propounded a certain instrument of writing, which he falsely and fraudulently represented to be the last will and testament of Samuel Robinson, deceased.”
That by this supposed will Samuel Robinson is made to say: “ I give, devise and bequeath to my daughter, Martha Cyrena Dowell, and my son-in-law, John Henry Dowell, the whole of my undivided estate, all the property, real, personal and mixed, of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, of whatever kind or character, to have and to hold to them and their heirs to their use and benefit forever, without any reserve whatever.”
That this paper was probated and admitted to record by the court of probate of Lawrence county, and said John Henry Dowell qualified as executor thereof and took possession of the personal and real estate, sold and disposed of the former, settled with the court, and was discharged before the commencement of this suit. That the said paper-writing was not the last will and testament of said Samuel Robinson, deceased, because—
First — He was, at the time when, etc., mentally incapable of making a will.
Second, — Said will was not the voluntary conscious act of the said Samuel Robinson, but was prepared, concocted and executed by the said John Henry Dowell, and under his direction and influence, and was procured by fraud.and deceit practiced upon the said Samuel by the said John Henry.
Third — That there was no publication of the will and ua declaration by the said Samuel concerning the same.
Fourth — That the probate was informal.
That after the death of the said Martha O. the said John H. sold and conveyed the lands to Henry M. Mandeville ■and William Allen, since deceased, who took possession under their deed; that since that time Mandeville sold and •conveyed his interest to defendant, Frank W. Tucker, and Tucker reconveyed by way of trust to secure the purchase money, and that this trust is still unsatisfied ; that Allen died before the commencement of this action, leaving a widow and divers heirs, some of whom are known and others unknown to plaintiffs; that Tucker and the heirs of Allen are in possession of the lands, who, with Mandeville, are made defendants.
The prayer of the complaint was that said pretended will be rejected, declared void and held for naught, and for other relief.
The defendant, Tucker, demurred to the complaint, because—
First — It did not state facts sufficient to constitute a ■cause of action against him. Second — The circuit court has no jurisdiction of the subject matter of the controversy. Third — Misjoinder of parties defendant. Fourth— For want of proper parties. Fifth — That neither of the ■paragraphs shows a cause of action, nor all together, ■against him. Sixth — Because the action appears to be •barred by limitation of five years. Seventh — Because plaintiffs are estopped by acts of their ancestors, through whom they claim. '
The demurrer was sustained by the court, and the plaintiffs appealed.
This action is based on sections 6525 and 6526 of Mansfield’s Digest, which say: “If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the circuit court of the county in which such will was estab lished or rejected, pray to have any such will rejected, if previously established, or proven, if previously rejected by the court of probate, it shall be the duty of the circuit court to direct an issue to try the validity of such will, which issue shall in all cases be tried by a jury.”
“ Sec. 6526. If no person shall appear within the time aforesaid to contest the validity of such will, the probate or rejection thereof shall be binding, saving to infants, married women, persons absent from the United States, or of unsound mind, a like period after their respective disabilities are removed.”
Have these statutes been repealed? They were a part cf the revised statutes of this state. Subsequent to their enactment the civil code of practice was enacted. Section 513 of the civil code 'provides, that wills shall be proven before and admitted to record by the probate court; that an appeal shall lie from the probate court to the circuit court, and thence to the Supreme Court, upon every order admitting a will to record, or rejecting it; that the appeal to the circuit court shall be taken within three years after rendering the order of probate, or rejection in the probate court, and to the Supreme Coui’t within one year after the decision in the circuit court; that the court to which a will is offered for probate may cause all persons interested in the probate to be summoned to appear on a certain day; that when the proceeding is taken to the circuit court, all the necessary parties shall be brought before the court; and upon the demand of any one of them a jury shall be empanneled to try which or how much of any testamentary paper produced is, or is not, the last will of the testator; that, if no jury be demanded, the court shall determine that question, and the final decision given shall be « bar to any other proceeding to call the probate or rejection of the will in question — subject to the right of appeal or writ of error to the Supreme Court as hereinbefore named, hut nothing in that section should preclude a court of chancery from its jurisdiction to impeach such final decision, for such reason as would give it jurisdiction over any other judgment at law.
Section 21 of the civil code provides that appeals from orders and judgments of the probate court “may be taken to the circuit court in the same time and in a similar manner in which appeals from the circuit court are taken to the Supreme Court, except that the original papers and copies of the orders of the probate court shall be delivered by the clerk of the probate court to the clerk of the circuit court, upon an appeal being taken, instead of a copy of the complete record.”
Section 780 says: “This code of practice shall reguulate the procedure in all civil actions and proceedings in the courts of this state, and all laws coming within the purview of its provisions shall be repealed.”
Section 857 says : “All statutes and laws heretofore in-force in this state, in any case provided for by this code, or inconsistent with its provisions, are hereby repealed and abrogated.”
The civil code of practice unquestionably provided for all cases in which sections 6525 and 6526 of Mansfield’s Digest afforded any relief or remedy, and that being the case repealed the last named sections.
In the absence of an express repeal they were repealed by the code by implication. For, as said in Pulaski County v. Downer, 10 Ark., 590, “ The authorities are abundant to support the proposition that when the legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intended it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.” See Mears v. Stewart, 31 Ark., 19.
The general assembly, by an act entitled “ An act to divide the state into sixteen judicial circuits, to confer original jurisdiction in all matters pertaining to probate and administration upon circuit courts, and to fix the time for holding said courts,” approved April 16, 1873, abolished probate courts, and vested in the circuit court all the. powers and jurisdiction formerly, and at the time of the passage of the act, possessed by courts of probate.
The circuit court was vested with jurisdiction in all matters pertaining to the probate of wills at the time the constitution of 1874 was adopted. By that constitution probate courts were re-created and vested with “ such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind, and their estates, as was then vested in the circuit courts, or might be thereafter prescribed by law.”
It must follow, then, that under the constitution of 1874, the circuit court has not and cannot take original jurisdiction in any matter relative to the probate of wills.
If it be true that the statutes relied on by appellants are still in force, they are barred from maintaining this action, The five years in which these statutes required such actions to be brought expired before the commencement of this suit.
The complaint alleges that Samuel Robinson, the testator, left him surviving Martha C. Dowell, his daughter, his sole heir; that the will in question was probated on the 11th day of October, 1865 ; that Martha O. was a married woman at this time, and so continued until her death ; and that she died some time in March, 1868, intestate, leaving surviving her, the plaintiffs her sole heirs and dis tributees at law. Under this state of facts Martha O. Dowell was the only party who had a right to contest the will of Robinson during her lifetime. She was a married woman, and the five years did not commence running during her coverture; but when she diedit commenced running against the plaintiffs. The fact that they where minors at that time did not prevent the statute running. They cannot tack their disabilities to that of their mother, Martha O. Dowell, in order to suspend or continue the suspension of the operation of the statute. This is a well settled principle of law. Angelí on Limitations (6 ed.), secs. 197, 198, 4T7-, 4¶9, 4-82; Wood on Limitations, sec. 251; Thorp v. Raymond, 16 How. (U. S.), 247; Lewis v. Marshall, 5 Pet. (U. S.), 469; Carter v. Cantrell, 16 Ark., 164; Parsons v. McCracken, 9 Leigh, 495; Bunce v. Walcott, 2 Conn., 32.
As a rule the statute of limitation cannot be taken advantage of by demurrer to the complaint, in an action at law, unless the complaint shows that a sufficient time had elapsed to bar the action, and the non-existence of any ground of avoidance. That is done by the complaint in this case. Collins v. Mack, 31 Ark., 684; McGehee v. Blackwell, 28 Ark., 27.
The demurrer in this case was properly sustained. The judgment of the court below is affirmed. | [
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Tom Glaze, Judge.
This appeal results from an eminent domain proceeding in which a jury awarded appellees $15,000 damages. On appeal, appellant Arkansas Louisiana Gas Company (Arkla) contends (1) there was insufficient, competent evidence to support the verdict, and (2) that the trial court erred (a) in not striking the testimony of appellee Downs concerning after value, (b) in permitting appellees’ counsel in his opening statement to note past dealings between the parties, and (c) in denying appellant’s motion for a mistrial.
In August of 1981, Arkla entered into an agreement with George L. Terry to construct a roadway, dehydrator, separator and a tank lot on property Arkla believed Terry owned. In March of 1982, Arkla learned that the property was actually owned by the appellees, Norris and Earline Downs. After the Downs got a restraining order to keep Arkla off their property, Arkla sought and was granted an order of entry to permit them to complete the project and to maintain and service the equipment. Subsequently, a jury trial was held to determine what, if any, damages were sustained by the Downs because of the contruction.
In challenging the jury’s verdict in this appeal, appellant contends the testimonies of appellee, Mr. Downs, and of appellees’ expert, “Butch” Wade, were insufficient to support the jury’s verdict of $15,000. It also argues the trial court should have stricken Mr. Downs’ testimony because he failed to state a reasonable basis for his opinion.
We first consider the testimony of Mr. Downs. Downs testified that he acquired his 58-acre farm in 1971, and that he believed his property was worth $750 per acre prior to the taking and construction by appellant. He testified further that, in his opinion, the land had decreased in value to $400 per acre because of the taking so that the difference in the before and after values of the 57 acres was 120,70o. Appellant points to various parts of Downs’ testimony and concludes there is no basis for the damages he claims. For example, appellant relates that Downs was not qualified as an expert; he did not specify or calculate his loss; he did not claim that the highest and best use for his remaining more-than-57 acres had been altered; he valued the .52 acre that was taken at $4,000, but admitted he had never actually planned to develop that property as a home site; and he was not familiar with any nearby land prices or sales.
Of course, the principle is well established that a landowner may testify to the value of his lands, despite his lack of knowledge of property value, if a satisfactory explanation is given for his conclusion. Arkansas State Highway Commission v. Cottrell, 9 Ark. App. 359, 660 S. W. 2d 179 (1983); see also Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S.W.2d 478 (1968). Although Downs might have strengthened his testimony by supplying detailed losses or comparable sale figures, it cannot be said seriouly that he had no reasonable basis for his opinion about the value of the land.
Downs and his wife have lived on the 58-acre farm for twelve years. He has used the property to raise chickens, run cattle and grow hay. He testified that the .52 acre taken by appellant was located on the highest point and in the center of his property. Downs said that the large dehydrator and the tank — which extends twenty feet above the ground — are visible from anywhere on the property. Besides being aestheticly displeasing to Downs, he testified that he lost that portion of the property for grazing purpose and for raising hay. Too, he added that he and his wife had discussed building a house at the same spot on which the unit was built. Finally, Downs further related that noise, a “rotten” odor and “clouds like soapsuds” emanated from the unit. Reviewing all of Downs’ testimony, we believe that he clearly demontrated the necessary familiarity with his property upon which he based an opinion concerning its value.
Next, we consider appellant’s challenge of the testimony given by appellees’ expert, Mr. Wade. Wade opined that total damages to the Downs were $16,600, viz., $12,000 damages for the difference between the before an after value of the land, $4,000 for the .52 acre actually taken and $600 for the loss of land on which the roadway was built and for the pasture. Appellant primarily attacks Wade’s opinion testimony because, it argues, Wade admitted that he did not have a single example of the market value of grazing land having decreased in value because of the existence of a dehydrator. Appellant contends that expert testimony similar to Wade’s was determined incompetent and stricken in Arkanas-Missouri Power Co. v. Sain, 262 Ark. 326, 556 S.W.2d 441 (1977). In Sain, the Arkanas-Missouri Power Company had condemned seven acres through a farm for the purpose of obtaining an easement for a transmission line. The Supreme Court, noting that “the expert on cross-examination admitted that he could not think of a single instance where a transmission line had any effect on the market value of the property,” held the expert’s testimony that the damages amounted to $27,197 did not have a sound and reasonable basis. Id. at 327-28, 556 S.W.2d at 442. The Supreme Court’s holding in Sain is not controlling here, however, because Wade did have personal knowledge of a piece of property with a facility like that constructed on the Downs’ property. In fact, Wade testified that he listed such property but “never got the opportunity to show it [because] they did not want to be near a facility like that.” Cf. Fulmer v. Southwestern Bell Telephone Co., 9 Ark. App. 92, 654 S.W.2d 603 (1983). In addition, Wade used comparable sales to support his value opinion. One comparable included a forty-acre farm located in Logan County that sold for $721 an acre about four months before the trial in this cause. Wade testified this forty-acre tract had “no road to it when it was purchased at that price” and it was “similar-type property but not as cleared and clean as this [Downs’] property.” Another comparable given by Wade was property adjacent to the Downs’ farm that sold at $780 per acre. Wade emphasized that the knoll on which appellant built its unit is the high point — which is also the best view — of the Downs’ property. He explained that because that knoll was the best acre on the farm and was in the center of the tract, the dehydrator’s presence on that spot affected the property’s market value to a buyer who wanted the land for a home and for grazing. Wade also considered the noise, smell, looks, fire and view as factors when arriving at his before and after value figures. In sum, he bound his diminution in the value of the acreage surrounding the acre in the middle of the farm land upon his “fifteen years of experience with buyers and what they prefer.” From our review of the record, we believe the testimonies of both Downs and Wade are competent and substantially support the jury’s verdict. Butler v. Arkansas State Highway Commission, 6 Ark. App. 267, 640 S.W.2d 467 (1982).
For its third point, appellant contends that the trial court erred in permitting the jury to hear and consider certain historical recitations about past dealings between appellant and appellees. Appellant’s objection stems from remarks made by appellees’ counsel in opening statement to the effect that appellant had gone to the appellees prior to this taking to request permission to survey the property, which request, according to appellees’ counsel, was granted. Appellant’s counsel objected at trial, and the court sustained the objection and warned appellees’ counsel to deal only with the value of the property. On appeal, appellant contends the reference was so damaging that the court should have admonished the jury to disrgard the statement. However, the record does not indicate that appellant requested an admonition; therefore, the trial court did not err in not admonishing the jury. Rickett v. Hayes, 256 Ark. 893, 511 S.W.2d 187 (1974).
Appellant’s last argument is that the trial court erred in not granting a mistrial when appellees’ expert witness stated that one of his considerations in appraising the property was “the liability exposure. ’ ’ Appellant cites no authority for the proposition that a statement concerning potential liability is prohibited in an eminent domain proceeding. The trial court did prohibit the witness from making further references to possible liability of the appellees, and on its own motion, the court admonished the jury to ignore the witness’s comment. A trial court is vested with considerable latitude and discretion in granting or denying a mistrial. Dickeron Construction Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979). It is an extreme measure to be taken only when it is apparent that justice cannot be served by continuing the trial. Morton v. Wiley, 271 Ark. 319, 609 S.W.2d 332 (1980). We find no abuse of discretion in the trial court’s action in denying appellant’ motion for mistrial. If error resulted from the remark, we believe it was cured by the trial judge’s admonition to the jury.
Because we find substantial evidence to support the jury’s verdict in favor of a $15,000 award to appellee, we affirm.
Affirmed.
Mayfield, C.J., and Cloninger, J., agree.
In his calculations, Mr. Downs excluded the acre taken when he figured the after value. Thus, the before value, $750 X 58 acres, minus the after value, $400 X 57, equals the difference, $20,700. | [
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Melvin Mayfield, Chief Judge.
Bill Reader was killed in an airplane crash on May 21, 1980, while working as a crop duster for Farm Air Corporation, an uninsured employer. His widow, Doris Reader, filed a claim in the Workers’ Compensation Commission for dependency benefits and was awarded $126.00 per week.
The only issue on appeal is the amount of the award. It is Farm Air’s contention that the deceased was a seasonal employee who had worked only three days the year he was killed and that the Commission’s award based on earnings for that short period was improper.
The appellant operated a flying service to apply various substances to soybeans, wheat, and rice. The work generally began around the second week in May when they started applying herbicides and continued until the middle of September when they finished applying fertilizer to rice fields. Occasionally there was some work in the late fall applying defoliants. Reader had worked as a pilot for the corporation since its inception in 1978. He earned 25% of the gross charges for the work he performed.
In 1980, Reader started working on May 19 and had flown five jobs when his plane crashed. There was testimony that his commission on these jobs would have been $376.50. This did not include the job he was flying at the time he crashed. The president of the corporation testified that he gave Mrs. Reader $300.00 for Mr. Reader’s work on that job.
This case involves the application of the following portions of Ark. Stat. Ann. § 81-1312 (Repl. 1977):
Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of accident, and in no case shall be computed on less than a full time work week in the employment.... If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly determined by the above formulas, the Commission may determine the average weekly wage by a method that is just and fair to all parties concerned.
It is clear that the law judge based the amount of his award upon the amount earned by Reader during the three days he worked in 1980, and the Commission adopted the law judge’s finding. The appellant argues that this was unfair to appellant and that the Commission should have applied the last sentence of the section to make a determination of Reader’s average weekly wage by a method that was “just and fair” to all parties.
The appellant, however, is not very specific in its suggestions as to the method that would be “just and fair”. Implied in its argument is the contention that whatever amount of earnings is used — whether those of the previous year or only those earned during 1980 — the amount should be spread out over a full year. In other words, if earnings for 1979 are used, the appellant would find the average weekly wage by taking the total amount that was earned in the approximately four months worked in 1979, and divide that amount by 52; and, if only the earnings for the three days in 1980 are used, the appellant would convert that into the amount that would have been earned in the four months that Reader expected to work in 1980, and would divide that amount by 52.
The only cases cited by appellant are Travelers Insurance Co. v. Perry, 262 Ark. 398, 557 S.W.2d 200 (1977) and Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (Ark. App. 1979), neither of which is really on point. In Travelers the employee was not even a seasonal employee. At times he made himself available for work to Manpower, Inc., an organization that provided workers for employers who needed temporary help, but he had no contractual arrangement that required him to work or to be available for work. In Ryan the employee was a four-hour per day worker whose claim that she was required to be available for a full eight hours was rejected.
The appellee defends the Commission’s award in this case on the basis of assumptions which it says the evidence would support. Thus the appellee argues that we should affirm because the Commission’s decision is supported by substantial evidence. It is clear, however, that the appellee agrees with the Commission’s refusal to spread Reader’s seasonal earnings over a 52-week period and use that as the basis for the calculation of average weekly wage.
We recognize that there is force in appellant’s argument, but we have concluded that the Commission’s award should be affirmed. Our decision is based upon the following considerations.
First, we agree with the appellant’s contention that the Commission could have used a better basis in making the determination of the employee’s average weekly wage. Our problem, however, is the same problem that the appellant had in suggesting what method the Commission could have used under its “j ust and fair’ ’ authority that would be of help to appellant. The president of the appellant corporation testified that Reader was paid $13,101.68 for his work in 1979, that Reader started working around the first week in May that year, and that the flying season ended the last of August or first of September. There were 123 days in the full four-month period involved, of which 17 were Sundays, and since they did not work Sundays, that leaves 106 working days. Dividing 106 into $13,101.68, we get $123.60 per day. Using the six days worked per week, we get an average weekly wage of $741.60. It is conceded that Mrs. Reader is entitled to benefits of 35% of the average weekly wage, Ark. Stat. Ann. § 81-1315(c) (Repl. 1977), subject to the maximum weekly benefit of $126.00, Ark. Stat. Ann. § 81-1310(b)(A) (Supp. 1983). Since 35% of $741.60 would be greater than the maximum allowance, it is of no help to appellant for the Commission to base the average weekly wage on the 1979 earnings unless, as appellant has suggested, these earnings are spread out over the entire year.
At this point we are faced with the second reason that impels our affirmance. The appellee cites and relies upon Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974). The employee in that case seldom worked a full five-day week. This was because of the nature of the timber industry in which he was employed. His work agreement was for a five-day week whenever work was available, but his employer made work available based upon weather conditions and the timber supply.
In determining the employee’s average weekly wage, the Commission used the previous 52-week period, but ignored one week in which the employee worked only one day and 18 weeks in which he worked only two or three days per week. The Commission then used the balance of 33 weeks, in which the employee worked either four or five days per week, and calculated the average weekly wage on the earnings for those 33 weeks. On appeal the Arkansas Supreme Court held that the average weekly wage should be based on a full week’s pay.
The statutory law in effect during the period involved in the Gill case is still in effect now. While the factual situation there was different from the factual situation in the case at bar, the principle is the same. Obviously, the court in Gill did not think there were exceptional circumstances which required the Commission to devise some “just and fair” method to replace “the average weekly wage earned by the employee under the contract of hire” as the basis on which compensation benefits should be computed. In the present case we do not approve of the method used by the Commission. It used less than a “full time work week” contrary to the statute, and even if there had been a full work week to use, there probably still would have been exceptional circumstances to require the employee’s 1979 earnings to be used in determining the average weekly wages. We do not, however, think there are exceptional circumstances in this case that would make it just and fair to both parties to take the wages earned in 1979, divide that amount by 52, and use that figure as the average weekly wage.
In discussing average wage computation, 11 Schneider, Workmen's Compensation Law § 2175 (perm. ed. 1957), states:
The computation of such average wage, under particular fact situations, often becomes difficult in one’s effort to arrive at a result just and fair to both employee and employer. It is generally considered contrary to that concept and against public policy to so compute an employee’s wage that it will result in a compensation award that pays the employee more during his period of disability than he is accustomed to earn in his usual or normal year around activity.
In the instant case, $126.00 per week for 52 weeks will pay this widow $6,552.00 per year. This is certainly not more than her husband was earning at the time he was killed. So while we do not approve of the method used by the Commission in the determination of the average weekly wage of the deceased employee, we see no other method, which we think would be just and fair to both parties, that would make any difference in the amount of benefits to be paid the appellee.
A third consideration in our decision to affirm is the fact that our Workers’ Compensation Act contains no specific provision dealing with seasonal employment. To hold that the 1979 earnings have to be spread out over the whole year for the purpose of determining the employee’s average weekly wage, it seems to us, would go further than the use of a more appropriate basis to compute the wage, and would, in this case, be tantamount to legislating policy in regard to seasonal employment.
Finally, we note the statement in Gill, supra, that “it is well established in workmen’s compensation cases ‘that when doubt exists we must remember the Workmen’s Compensation Act is remedial and should be construed liberally to effectuate its purpose.”
Based upon the above considerations, we affirm.
Cloninger and Corbin, JJ., agree. | [
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Cockrill, C. J.
St. Francis county instituted proceedings in the manner pointed out by the act of March 17, 1873, which created Lee county, to ascertain and fix the pro rata of the indebtedness of the old county to be borne by the new, for the territory derived by the latter from the former. The demand of St. Francis was resisted, and the matter went by appeal into the Lee circuit court, where judgment was rendered adjusting the matter to the satisfaction of both counties, except as to the railroad debt of the mother county. As to that, judgment was rendered in favor of Lee, the judgment record reciting that the cause was submitted to the court upon the pleadings and evidence, and that the court found the fact to be that no portion of the indebtedness of St. Francis county arising upon the subscription to stock, or the issue of bonds to the railroad, was a debt of Lee county.. As the sixth section of the act provides that Lee shall share the burden of the debt of the mother counties existing at the date of its creation, the finding of fact set forth in the judgment was tantamount to finding that St. Francis was not indebted on the account stated at the time Lee was created.
After the court had made a special finding of facts and declared the law thereon, but before judgment was entered, the counsel for St. Francis county filed a motion asking for time to bring in additional proof. The' court refused to grant the request, the judge stating to counsel in doing so, that if the evidence of the facts stated in their motion were before him, the court would adhere to its conclusions upon the law of the case. St. Francis county brought this motion upon the record by bill of exceptions, and set forth the action of the court above recited. The bill of exceptions contained none of the evidence referred to in the judgment, and no reference is made to it; it contains no finding of facts, no declarations of law, no motion for a new trial, no exception saved to any ruling of the court except as to tbe motion first mentioned.
The court had jurisdiction of the subject-matter and of the parties, and no error appears upon the face of the record-proper; nothing is therefore presented for our consideration except the refusal to grant the appellant further time to present testimony. Smith v. Hollis, ante, 17, and cases there cited; Hall v. Bronville, 36 Ark., 491.
It is not contended that the court abused its discretion in overruling this motion, but it is argued that the judge treated the case as though the omitted evidence had been actually introduced, and the facts stated in the motion embodied in the findings of fact made; and that we should consider it in that light. If we should conclude that this was the intention of the circuit judge, and should adopt the practice indicated, it would not aid the appellant’s case.
"We cannot presume the new evidence offered covered the entire ground of the proof in the case. It is not pretended that it does, and if the matter presented by the motion were treated as proved, the presumption would still prevail that' the judgment was sustained by the evidence. Where all the facts are not before the appellate court, the presumption is that every fact susceptible of proof in the proceeding sought to be reviewed which could aid the appellee’s case, was established by the evidence. McKinney v. Demby, 44 Ark., 74; Mansf. Rev. St., sec. 5160 and note (h. h. h.); Hague New Trial and App., p. 685.
Affirm. | [
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James R. Cooper, Judge.
In this workers’ compensation case, the Commission, by a two to one vote, held that the appellant, Mitchell Gene Little, had failed to prove a causal connection between a fall suffered while in the employ of the appellee, Delta Rice Mill, Inc., and his subsequent disability and medical treatment. From that decision, comes this appeal.
The facts of this case are essentially undisputed. Mitchell Gene Little suffered a fall on May 12, 1981, and as a result of that fall was off work for approximately nine days. The appellees did not controvert the compensability of that accident. The appellant returned to work and was continuously employed by the appellee, Delta Rice Mill, Inc., until August 4, 1981. The testimony indicates that from the time of the initial fall until the time he quit work, the appellant suffered severe headaches, dizziness, and unsteadiness on his feet. He sought medical attention in August of 1981, and after consulting a neuro-surgeon, Dr. Thomas Miller, on September 4, 1981, a CT brainscan was performed on September 11, 1981, and a malignant brain tumor was discovered. The tumor was removed on September 17, 1981, and from that date until the appellant’s death in August, 1983, he required medical treatments consisting of radiation therapy and other required treatments.
Both counsel agree that the medical testimony is critical to a disposition of this case. The administrative law judge, and the Commission’s opinion view Dr. Miller’s testimony as contradictory, while Commissioner Farrar’s dissent finds no inconsistency in the testimony of Dr. Miller. Dr. Miller testified that, in his medical opinion, the tumor did not grow related to the fall suffered in May, 1981, nor did it become malignant with regard to the trauma, nor was the actual growth of the tumor actually accelerated as a result of the trauma. However, he testified that the fall and the blow to the appellant’s head caused swelling in and around the tumor, which caused symptoms, i.e., headaches, to arise sooner than they otherwise would have absent the trauma. Dr. Miller also testified that, in his medical opinion, these symptoms would not have arisen for a period of time, in his best judgment six months, without the trauma. He further testified that, based upon a reasonable degree of medical certainty, the May 12,1981, fall aggravated or accelerated the tumor to the extent that it produced swelling and edema which caused symptoms and difficulties earlier than would have been present absent the fall.
It is uncontradicted that the appellant suffered no symptoms of dizziness, unsteadiness, or headaches prior to the fall on May 12, 1981; that the symptoms began immediately after the trauma, and did not cease, even though, for a period of approximately three months, the symptoms were not disabling; that with no additional trauma or intervening cause, the symptoms caused the appellant to become disabled in early August, 1981; that the medical testimony clearly indicates that the tumor itself suffered a traumatic injury, thereby causing it to become symptomatic earlier than it would have absent the trauma; and finally, that the trauma to the tumor was sustained by examination of the tumor following its removal, when Dr. Miller found dead tissue and stained fluid in and about the tumor.
It has long been the rule in Arkansas that a pre-existing disease or infirmity of an employee does not disqualify his claim under the requirement that the disability “arise out of the employment” where the employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Black v. Riverside Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982).
It is worth observing that Dr. Miller noted that there was no history of any prior disability which preceded the May 12, 1981 fall, and no other witness testified as to any disability which had disabled the claimant prior to that injury. Although Dr. Miller testified that the tumor preexisted the injury, and in fact may have been present at birth or shortly thereafter, no symptoms or other evidence of its existence was evident until the fall precipitated the onset of symptoms which soon became totally disabling.
We recognize the standard of review which the law dictates this Court follow. On appeal, we are required to review the evidence in the light most favorable to the Commission’s decision and uphold it if it is supported by substantial evidence. Before we may reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Office of Emergency Services v. Home Ins. Co., 2 Ark. App. 185, 618 S.W.2d 573 (1981); Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (Ark. App. 1980). On the facts of the case at bar, we cannot say that fair-minded persons could arrive at the conclusion found by the Commission. The chain of events from the fall suffered by the appellant on May 12, 1981, shows without doubt that, after considering the testimony of all witnesses, including the appellant’s mother, and his treating neuro-surgeon, Dr. Miller, his disability and medical expenses were causally connected to the earlier fall. Dr. Miller’s testimony clearly indicates that the trauma to the appellant’s head accelerated the onset of disabling symptoms by as much as six months. That fact is uncon-troverted since the fall hastened the appellant’s disability, regardless of whether it would have occurred eventually anyway.
The case of Claphan v. Great Bend Manor, 5 Kan. App. 2d 47, 611 P.2d 180 (1980), is strikingly similar to the case at bar. In Clap han, the worker suffered a disc injury. She worked for approximately twelve days until the pain caused her to cease work. In the course of receiving medical treatment, a tumor was discovered. The medical testimony indicated that, as in the case at bar, the tumor was not the result of the work-related injury, but that the injury caused the onset of symptoms related to the tumor. The neuro surgeon’s testimony in Claphan is remarkably similar to that in the case at bar. In Claphan, the doctor stated:
“I would think that the tumor was there at that time, preexisting to that, that she probably had adequate room in the spinal canal for the tumor, that it had, you know, at that point wasn’t causing severe pressure, but that the effect of lifting at that particular time may very well have exacerbated or caused that preexisting tumor to become symptomatic. That isn’t all that terribly uncommon. I’ve seen patients who had a minor car accident — or one particularly fell out of a tree and hit his head, started having headaches, never had them before. Well, he had a brain tumor but, you know, the cause — the fall simply caused the tumor to become symptomatic. His pressure relationships in the head were just adequately balanced until that. I think that’s what happened to her back.”
The physician further stated that if the claimant had not had the accident, the tumor would have become symptomatic within approximately three to six months. The Kansas Court of Appeals, in considering the issue, noted that the medical testimony stressed that the injury did not cause the tumor, but pointed out that that was not the test. In so doing, the court stated ". . . the test is not whether the injury causes the tumor, but rather whether the injury aggravates or accelerates the condition . . .” The Kansas Court of Appeals reversed the administrative decision denying benefits and awarded full benefits.
We hold that the evidence in the case at bar is such that fair-minded persons could not conclude that the appellant’s work-related injury did not accelerate and/or aggravate the onset of symptoms which caused his disability earlier than if he had not been injured on the job. Accordingly we reverse and remand to the Commission with directions to award benefits, both disability and medical.
Reversed and remanded.
Cloninger and Glaze, JJ., concur.
Commissioner Tatum concurred in the majority opinion written by Chairman Rotenberry. Commissioner Farrar, dissented.
The appellant, Mitchell Gene Little, died on August 15, 1983. A motion to revive the cause of action in the name of his administrator was granted by this Court on September 28, 1983. | [
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Tom Glaze, Judge.
This appeal results from a declaratory judgment action brought in chancery court by appellee George M. Vandegrift pursuant to Ark. Stat. Ann. §§ 34-2501 to -2512 (Repl. 1962). The appellant, Integon Life Insurance Corporation (Integon), alleges on appeal that the chancellor erred in ruling that the employment agreement between appellant and appellee was neither terminable at will nor terminable upon ten days’ notice.
The facts are virtually undisputed. In September of 1981, Vandegrift became employed as regional director for Integon in Arkansas and Oklahoma. David Pollock, agency director for Integon at that time, wrote Vandegrift a letter dated September 8, 1981, to “detail the agreements” the parties had reached verbally the week before. The letter included details of Vandegrift’s salary, his territory and other matters related to his employment. The letter referred to a “regional director’s contract” and an “enclos[ed] . . . complete set of contract papers.” In late September Vandegrift attended an orientation program at Integon’s home office in Winston-Salem, North Carolina. While in Winston-Salem, Vandegrift signed a “Regional Director Contract” dated September BO, 1981. These two documents — the September 8 letter and the September 30 contract — created the dispute that led to the declaratory judgment action. Vandegrift claims that he was guaranteed a minimum of three years’ employment and points to language in the letter to support his assertion. Integon, on the other hand, claims that a termination provision contained in the Regional Director Contract applies to all of its employment contracts, including the one with Vandegrift. That provision reflects that either party may terminate the employment agreement with ten days’ notice to the other party.
In October, 1982, Vandegrift attended a meeting in Winston-Salem at which Integon’s new president announced an increase in income requirements for all regions. He also said that Integon intended to consolidate some of its smaller regions into larger ones. In January of 1983, Vandegrift attended another regional meeting, and his new agency director indicated that changes in the Arkansas-Oklahoma region might be forthcoming. About a week later, the agency director informed Vandegrift that the Arkansas-Oklahoma region was being combined with a portion of Tennessee. He asked Vandegrift to sign a new marketing general agent’s agreement (not a regional director’s contract) by the next morning or relinquish all rights to profit from sales made by agents he had recruited.
Vandegrift did not sign the new agreement. Instead, he filed a declaratory judgment action in February, 1983, asking the court to determine the parties’ rights and obligations with regard to Vandegrift’s employment agreement or agreements. He specifically requested the court to resolve the dispute over (1) the contractual validity of the terms and conditions of the letter dated September 8, 1981, and (2) the contractual validity of the ten-day termination clause in the contract dated September 30, 1981.
At trial, the court heard testimony from both Vandegrift and Dave Pollock, a regional director and formerly the agency director who had recruited Vandegrift for Integon. Both men testified about the circumstances surrounding Vandegrift’s association with Integon and about the two disputed documents. The trial court found, in part:
1. The provisions contained in the letter of September 8, 1981 . . . and the subsequent performance of both parties, causes this letter to become an enforceable contract between the parties for a term of three years from on or about September 8, 1981, at the rates and other terms identified in the letter, for the regional area of Arkansas and Oklahoma.
2. The bilaterally executed agreement of September 30, 1981, is integrated into the contract of September 8, 1981, except in two areas that appear inconsistent with the terms and conditions of the September 8, 1981, letter, to-wit:
(A) Section II. Territory and Part 6 Territory.
(B) Section IX. Termination
These sections appear to deprive Plaintiff [Vandegrift] of substantive contractual rights contained in the contract letter of September 8,1981, without extending to Plaintiff any new consideration; were not explained to the Plaintiff in such a fashion as to make him aware of the proposed diminution of contractual rights and the two sections aforementioned are irreconcilable with other sections of the contracts calling for payment over a three-year period and setting premium goals in anticipation of volume in the Arkansas-Oklahoma geographic area.
3. The Court is without jurisdiction to enjoin either party from terminating a personal service contract, but if such termination occurs, the Court retains jurisdiction in the event either party chooses to present a proper petition for damages that may result from such termination.
The appellant’s only point for reversal is that the chancellor erred in finding the employment agreement between Vandegrift and Integon neither terminable at will nor terminable upon ten days’ notice. Appellant argues that because neither the letter nor the contract set out a specific term of employment, the agreement was terminable at the will of either party, in accordance with the common law rule. See Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982); M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In the case at bar, however, the chancellor found that a specific term of employment was agreed upon. If that finding was correct, then the common law rule upon which the appellant relies would not apply. On appeal, we review the record de novo and affirm unless the chancellor’s findings of fact are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Here, we must determine whether the chancellor clearly erred in finding that a three-year term was provided by the parties’ agreement.
The chancellor found that the letter of September 8 and the contract of September 30 must be construed together in order to ascertain the parties’ intended agreement. The chancellor found that two sections in the September 30 contract, one pertaining to “territory” and one to “termination” were irreconcilable with provisions in the letter of September 8 covering the same subject matter. We believe that the law in Arkansas, as applied to the facts of this case, supports the chancellor’s decision.
The September 8 letter was from Pollock to Vandegrift and was a follow-up to a meeting between them. The letter specifically outlined Vandegrift’s territory, the production requirements for that territory for each of three years and Vandegrift’s salary. The letter provided, in part, as follows:
Your territory will comprise the states of Arkansas and Oklahoma and will be detailed as part of your regional director’s contract. . . . [T]he minimum requirements for production should be $350,000 of premium the first full year under contract, $600,000 the second full year under contract and $950,000 the third complete year under contract. . . .
As we discussed, we will be sending you a check for $6,000 each month. $2,500 of the monthly check will be our investment in you with the additional $3,500.00 being a draw against your regional director earnings and overrides.
The $2,500 of subsidy each month will continue for 36 months for a total investment of $30,000 a year or $90,000 over a three-year period. We will continue the $3,500 monthly advancement until you have developed a credit in your account. Hopefully, you will have developed a credit in your account before the 36-month investment period has expired and at such time that it looks that your monthly production will provide a steady cash flow, then you would have the option of coming off the advance program and going on monthly credit balance and receiving a check for any credit balance built up in your account.
None of the salary information specified above was included in the September 30 contract. Both Vandegrift and Pollock testified that the letter set out the oral agreement they had reached the week before. Pollock testified that the $2,500 “investment” in Mr. Vandegrift was a “separate agreement,” not a part of the regional director’s contract. He stated that the only details of the “financing agreement for new regional director” was his letter of September 8. Pollock explained the situation as follows:
Each regional director has a contract which is the regional director’s contract, and that governs the terms of his employment with Integon. Okay, with a new regional director, we also offered additional financing over and above the contract to help him get started. My letter was to clarify the financing that we had offered to Mr. Vandegrift. . . . The letter itself is the agreement.
In other words, the letter is crucial to an understanding of one important aspect of Vandegrift’s employment with Integon — his salary. In addition to specifics of salary, the letter specified Vandegrift’s territory as the states of Arkansas and Oklahoma. The “Territory Supplement” of the Sep tember 30 contract set out “All Counties” of Arkansas and Oklahoma as his territory with the added condition that assignments are subject to change in the discretion of Integon.
Vandegrift also testified about the circumstances surrounding his signing of the September 30 agreement. After receiving the September 8 letter, Vandegrift complied with the company’s instructions and got a physical examination. On September 15, he resigned his position as vice president and assistant agency director of First Pyramid Life Insurance Company. He leased office space on September 17, bought office furniture and prepared to commence business. Although the exact date is in conflict, at the end of September or the beginning of October, he went to North Carolina to attend a regional meeting and an orientation program. Vandegrift testified that at the end of a full week there, the following occurred:
I was sitting in Dave Pollock’s office, and a person came in with this document, and said in order to — in words such as make this whole thing complete, we need your signature here and here and here and whatever the number of signatures are. . . . [I]f I hadn’t signed that agreement, I wouldn’t have had a job.
We believe the preponderance of the evidence supports the chancellor’s finding that the letter of September 8 was an enforceable contract between Vandegrift and Integon and that this letter and the contract of September 30 became integrated to express the full agreement of the parties. Vandegrift testified that he interpreted the September 8 letter to mean he had a three-year contract with Integon, and the letter merely substantiated “what he had been told.” The evidence also supports the chancellor’s disregard of those contract provisions governing territory and termination that were irreconcilable with specific agreements set out in the letter. These parties’ agreement is governed by general rules for the construction of contracts. A contract is to be considered as a whole, and if the agreement of the parties is embraced in two or more instruments,' both or all of the instruments must be considered together. Wallace v. United States, 294 F.Supp. 1225, 1251 (E.D. Ark. 1968). In W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6, 121 S.W.2d 886 (1938), the Arkansas Supreme Court said:
The principal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles. . . . This court has many times held that in ascertaining the intention of the contracting parties, courts may acquaint themselves with the persons and circumstances mentioned in the contract, and may place themselves in parties’ situation. . . .
Id. at 9-10, 121 S.W.2d at 888 (citations omitted).
In ascertaining the parties’ intent, the chancellor heard the testimony of both Vandegrift and Pollock. The court considered the actions of the respective parties from the time of the letter. Vandegrift resigned his position, set up his Integon office and began conducting Integon business. At the end of October, 1981, Integon began paying Vandegrift $6,000 a month pursuant to the letter and was still paying that amount monthly at the time this cause was heard in March, 1983. As noted previously, Vandegrift interpreted the parties’ September 8 letter to mean that he had a three-year contract with Integon, and the letter merely substantiated what he had been told. Because the parties’ initial financial agreement was exclusively contained in that letter and revolved around a three-year period, we believe the chancellor’s finding that Integon contracted to pay Vandegrift over a three-year period is supported by the evidence. Therefore, we affirm.
Affirmed.
Mayfield, C.J., and Cloninger, J., agree. | [
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OPINION.
Cockrill, C. J.
The appellants rely upon the statute of limitations as a bar to the action. A cause of action did not accrue upon the bond until the administrator’s accounts were finally settled and an order made by the court directing him to pay the amount found due to the parties entitled to receive it. Fort v. Blagg, 38 Ark., 471 Baker v. State, 21 ib., 405; Padgett v. Coleman, 45 ib., 495.
The inference from the record is that such an order might have been procured by the administrator or the distributees as early as 1872, but a different course seems to have been thought advisable by all the parties, except the guardian of a minor heir of the deceased. He procured an order for the payment of his ward’s distributive share in 1873, but the order was never acted upon; the administrator did not seek to be discharged from his trust, and continued in its discharge, apparently for the purpose of collecting some notes due to the estate before making a final distribution. The order for payment to the guardian made in 1873, did not profess to be a general or final distribution. It was made upon the ex parte application of a single distributee, and does not purport to apply to any interest,other than the petitioner’s. It does not designate any particular part or pro rata of the assets to be delivered or paid to him, and whatever efficacy, if any, it may have had as to him, it is apparent it did not affect the rights of the other distributees. No action could have been maintained by them until October, 1882, when the administrator’s account was finally adjusted and an order for a general distribution made.
It is argued that these orders are void for want of notice to the administrator, that they would be applied for. Aside from the fact that he appeared, by attorney, at every step in the proceeding, the court acquired jurisdiction of his person by the service of the citation and order of attachment. Pearce, ex parte, 44 Ark., 515. If he was entitled to credits for disbursements or payments made to distributees, he should have established the fact when his account was passed upon. He then had his day in court, and the opportunity of showing why an order for the distribution of the assets, or any part thereof, should not be made (Pearce ex parte, sup.), and having neglected to do so, the correctness of the orders cannot be questioned now. The adjudication by the probate court of the amount of his liability, is conclusive evidence against his sureties in this action. Jones v. State, 14 Ark., 170.
James Elms, one of the heirs at law of Garrett Elms, deceased, died before the institution of this suit, and his widow joined with her deceased husband’s co-heirs as plaintiff to recover his distributive share of the assets. The interest of the deceased minor heir is not specifically claimed by any one, though the appellees seem to lay common claim to it as his heirs at law. The court awarded them, including the widow of James Elms, the full penalty of the bond, thereby permitting them to recover the distributive shares going to the estate of James Elms and the deceased minor. That this was error has been frequently decided by this court. The administrators of the deceased heirs are alone entitled to recover for their interest. Purcelly v. Carter, 45 Ark., 299.
If we had a sure guide by which the interests of James Elms and the other deceased distributee could be eliminated from the judgment, we would affirm as to the other interests ; but the order of distribution made by the probate court merely directed the amount due to the estate to be paid in solido to the parties in interest, and we are unable to determine what amount should be adjudged to any individual. The judgment must therefore be reversed for the error indicated, and the case remanded with leave to the plaintiffs to bring in necessary parties. | [
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George K. Cracraft, Judge.
Clyde James, Jr. appeals from his conviction of one count of carnal abuse in the first degree as defined in Ark. Stat. Ann. § 41-1804 (Repl. 1977), a class C felony, and one count of sexual abuse in the first degree as defined in § 41-1808 (Repl. 1977), a Class D felony, for which he was sentenced to concurrent terms of 10 years and 6 years respectively. He advances six points of procedural error which he contends warrant reversal. We find no merit in any of them.
On October 1, 1982 the defendant was charged with the crime of first degree carnal abuse for engaging in deviate sexual activity with his seven year old daughter. In the second count he was accused of having committed the crime of sexual misconduct by engaging in sexual contact with his fifteen year old adopted daughter on that same day.
On January 26, 1983 the appellant filed a motion for severance of offenses pursuant to A.R.Cr.P. Rule 22.2(a) which provides that where two or more offenses have been joined for trial solely on the ground that they are of the same or similar character and are not part of a single scheme or plan, the defendant shall have a right of severance. In his motion the appellant contended that these offenses were joined solely because they were of the same character and were not part of a single scheme. This motion was argued to the court on February 6, 1983. No record was made of that proceeding but in the record of a pre-trial hearing the next day, on a motion in limine and to suppress a confession, the following reference is made to it:
THE COURT: Let’s see, we argued the severance motions yesterday and I told you that I would rule on those after I heard the suppression, or what did I tell you yesterday?
MR. SKINNER: Judge, I believe you said at that point you would overrule the motions, however, you would allow me to request the motions again after the suppression hearing and you might reconsider.
THE COURT: I believe that’s right.
The hearing continued on the motion to suppress the confession. No evidence as to the circumstances under which the two crimes were alleged to have been committed was offered. At the conclusion of that hearing the court denied the motion to suppress. Appellant’s counsel then brought to the court’s attention his motion for severance of offenses and the court announced that he adhered to his prior decision to deny it. Nothing further on this subject appears in the record.
On March 23, 1983 the trial was held on both counts contained in the information. Appellant contends that he was prejudiced by being forced into a single trial of two separate offenses which were not proved to be part of a single scheme or plan. He argues that, as the younger victim testified to one act of carnal abuse during “the summer of last year” and the older one to an act of sexual misconduct “on the last Friday in July,” there was nothing to show a single scheme. Appellant relies on Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979) and A.R.Cr.P. Rule 22.2(a). We do not agree.
A.R.Cr.P. Rule 22.1(a) requires that a motion for severance of offenses be timely made before trial except where it is based on a ground not previously known. Rule 22.1 (b) provides as follows:
If a defendant’s pretrial motion for severance was overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion. [Emphasis supplied]
We note that the information alleged that the two acts occurred on the same day. The record is silent as to what was presented to the court when the hearing was held on that motion. We cannot conclude at that point that the court abused discretion by not granting the severance. The allegation that both offenses occured on the same day between members of the same household may well be indicative of a single scheme or plan. Our cases have held that there are circumstances under which separate crimes committed upon different individuals close in time may constitute a single scheme or plan within the meaning of A.R.Cr.P. Rule 22.2(a). Ruiz and Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981).
At that point the two victims had not testified as to the circumstances under which the two crimes were committed and there was no evidence indicating that the two acts were not parts of a single episode. It was not until the testimony of the two girls was presented at the trial that the evidence on which appellant based his argument appears. The motion to sever the offenses was not renewed when these victims gave their testimony, at the close of all of the evidence, or at any subsequent time. Even if the evidence disclosed that the two offenses were not a part of a single scheme or plan, and were joined solely because they were of similar character, failure to renew the motion constituted a waiver of a right to severance under the clear wording of A.R.Cr.P. Rule 22.1(b).
Appellant next contends that the trial court erred in not permitting him to testify about statements made to him by the police officers relating to a polygraph examination. At the Denno hearing the officers testified that during the course of their investigation of the charges of sexual abuse the appellant voluntarily agreed to submit to a polygraph test. During a pre-test interview appellant was advised of his Miranda rights and he signed a written waiver and consent to take the test. They testified that no test was administered because he voluntarily confessed to having committed the two offenses during the customary pre-test interview.
In his motion to suppress the confession appellant alleged that he had waived his right to remain silent solely because of statements of the officers which misled him as to the nature of the investigation. Although appellant did not testify at the Denno hearing, he sought an admission from the officers on cross-examination that they had told appellant they were not conducting a criminal investigation, but the polygraph test was for his own benefit and that of Social Services in finding a solution to his difficulties and to reunite him with his children. The officers denied making any such statements. Appellant does not appeal from the court’s determination that the confession was voluntary.
At the trial the officer made no mention of the polygraph test on direct examination. On cross-examination he was asked if one had been administered. Before he answered the question the State objected. Appellant argued to the court that the purpose of his question was to attack the credibility of the officer because if he again stated that no test was administered, appellant would, take the stand to contradict him. The court ruled that whether a polygraph test was administered was immaterial and mention of it was too prejudicial. He did permit full cross-examination of the officer regarding any misleading statements made to appellant. The officer again denied that the statement had been made. While it does not appear that the court’s ruling on the question concerning the polygraph test is the basis for appellant’s argument on appeal, it does have a direct bearing on the argument he does make.
After the State concluded its case appellant stated that in view of the court’s ruling on the admission of evidence about the polygraph he wished to proffer appellant’s testimony that he had been induced to come to the Sheriff’s office by promises that if he took a polygraph test it would aid him in an investigation being made by the Department of Social Services and facilitate the reuniting of his family. The court ruled that he could testify concerning any matters stated in the proffer except his reference to the polygraph. Appellant now argues that the purpose of this testimony was to attack the credibility of the officer and the court erred in excluding it.
While such inducing statements might have been material to the issue of the voluntariness of the confession, the evidence was offered not for that purpose but to impeach the witness. One may not cross-examine a witness about a collateral matter and then impeach him by proof of a contradicting statement. Peters v. State, 103 Ark. 119, 146 S.W. 491 (1912). Odom v. State, 259 Ark. 429, 533 S.W.2d 514 (1976). The test in determining whether the issue is a collateral one is whether the cross-examining party would be entitled to prove the issue as part of his case. Vanderpool v. State, 4 Ark. App. 93, 628 S.W.2d 576 (1982). Whether the officer made the statements attributed to him or whether a polygraph test was in fact administered were collateral matters. The court was correct in his ruling.
Appellant next contends that the trial court erred in ruling that if the defendant took the stand to attack the credibility of the police officer’s testimony he would be subject to the same rules of cross-examination as any other witness. He relies on Unif. R. Evid. 608(b) which provides that where a witness, including an accused person, is examined only on matters relating to credibility he does not waive his privilege against self-incrimination. We do not address this argument because it was not raised in the trial court and may not be argued for the first time on appeal.
The appellant next contends that the trial court erred in excluding evidence of the appellant’s rehabilitation, subsequent to the commission of the crimes, through counseling. The court ruled this evidence was irrelevant. We agree.
A determination of the relevancy of evidence is within the trial court’s discretion and we will not reverse its ruling absent a showing of an abuse of discretion. Unif. R. Evid. 401; Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982). Some matters in mitigation of punishment are relevant and appropriate for a jury’s consideration in arriving at punishment. In the circumstances of this case we cannot conclude that the trial court abused its discretion in determining that the proffered evidence was irrelevant for that purpose. Evidence in mitigation of punishment is such that although it does not constitute justification or excuse for the offense in question it may in fairness and mercy be considered as extenuating or reducing the degree of moral culpability. The evidence proffered here had no such tendency. It was offered for the stated purpose of obtaining a suspended sentence upon showing that subsequent to the commission of these crimes events had occurred which made it unlikely that the appellant would commit them again. It is the function of the jury to determine the issue of guilt or innocence and fix the appropriate penalty upon a finding of guilty. Although a jury may recommend mercy or the imposition of a suspended sentence, their recommendation is advisory only and is not binding upon the trial court. The trial court alone has the authority to impose a suspended sentence. Clayton v. State, 247 Ark. 643, 447 S.W.2d 319 (1969). We find no abuse of the trial court’s discretion in excluding this evidence.
The appellant next contends that the trial court erred in refusing to give his proffered instruction on sexual misconduct as a lesser included offense of carnal abuse. Carnal abuse (Ark. Stat. Ann. § 41-1804) is defined as a person eighteen years old or older engaging in sexual intercourse or deviate sexual activity with another person not his spouse who is less than fourteen years old. Sexual misconduct is defined in Ark. Stat. Ann. § 41-1807 (Repl. 1977) as engaging in sexual intercourse or deviate sexual activity with another person not one’s spouse who is less than sixteen years old. It is a class B misdemeanor. While we agree that sexual misconduct is a lesser included offense of carnal abuse in the first degree we find no error in refusal to give the instruction. It is reversible error to refuse to give a correct instruction on a lesser included offense when there is testimony furnishing, a reasonable basis on which the accused may be found guilty of the lesser offense. Where, however, there is no evidence tending to disprove one of the elements of the larger offense the court is not required to instruct on the lesser one because absent such evidence there is no reasonable basis for finding an accused guilty of the lesser offense. In this type of case the jury must find the defendant guilty either of the offense charged or nothing at all. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982); Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972).
The uncontradicted evidence in this case disclosed that the victim was under the age of fourteen and that the appellant was twenty-seven years of age. There was no evidence from which the jury might find or infer that he was under the age of eighteen. We conclude that only in that event would an instruction on sexual misconduct have been required.
The appellant argues that as the victim was seven (under the age of fourteen) the actions of the appellant could have resulted in conviction under either statute. A review of our statutes, and the commentaries to them, that deal with sexual offenses to one beneath the age of consent leads to a contrary conclusion. Sexual activity with one under the age of eleven years is rape, a class Y felony, Ark. Stat. Ann. § 41-1803 (Supp. 1983). Such activity by one over eighteen years of age with another under fourteen is carnal abuse in the first degree, a class C felony, Ark. Stat. Ann. § 41-1804 (Repl. 1977), and by one over twenty with another under sixteen is carnal abuse in the third degree, a class A misdemeanor. It is clear from these various sections that the Legislature intended the age of the victim to control the severity of the penalty. In the enactment of the two degrees of carnal abuse the taking into account of the relative ages of the participants as well as the absolute age of the victim evidences an intent to exclude from their ambit such conduct between contemporaries or near contemporaries. See Commentary to Ark. Stat. Ann. § 41-1808 (Repl. 1977).
The sexual misconduct statute was enacted to fill the gaps created by the age requirements of the two degrees of carnal abuse to cover those situations where the victim is eleven, twelve or thirteen years old and the offender is less than eighteen, or the victim is fourteen or fifteen years of age and the offender is less than twenty years old. See Commentary to Ark. Stat. Ann. § 41-1807 (Repl. 1977).
As there was no reasonable basis upon which the jury could find the accused was less than eighteen years of age, it could not have found him guilty of the lesser included offense and the court was not required to instruct on it.
At the conclusion of the closing arguments the trial court instructed the jury with respect to four verdict forms and instructed the bailiff to take them to the jury room. After the jury had retired appellant’s counsel approached the bench and objected “for the record” to a comment of the prosecuting attorney during his argument. The trial court overruled the objection as being untimely made. We agree.
An obj ection must be made at the first opportunity to do so. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Furthermore, the trial court has the opportunity to judge and observe the prej udicial impact of closing arguments to a jury and is vested with broad latitude of discretion in supervising and controlling those arguments. Decisions based on that discretion will not be overturned unless there is a manifest abuse of it. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). The appellant argues that the jury had not yet begun their deliberations and the court could have recalled them and admonished them not to consider those remarks. No request for recall or admonishment was made. Even if the objection had been made timely we cannot conclude that under the circumstances of this case appellant had demonstrated that the trial court abused this discretion.
Affirmed.
Mayfield and Glaze, JJ., agree. | [
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Donald L. Corbin, Judge.
Appellant, Jerrell Robinson, was charged with two counts of theft of property, a class C felony. He was convicted and sentenced to four years in the Arkansas Department of Correction and fined $ 1,000.00. We reverse and remand for a new trial.
Appellant raises two points for reversal. In his first point appellant contends that the trial court erred in refusing to give appellant’s requested instruction, AMCI 403, which in effect provides that the jury is allowed to decide whether certain witnesses are accomplices, and is then instructed that the defendant cannot be convicted based upon an accomplice’s testimony unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense.
“Accomplice” is defined in Ark. Stat. Ann. § 41-303 (Repl. 1977), as follows:
(1) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Dwan Criner testified that he, Henry Sims, Sandra Sims, Catrina Jeffrey and appellant took appellant’s car to Hargrove’s Reservoir. Some of the group fished, but Criner was intoxicated and not feeling too well so he lay down in the car. While in the car, he saw appellant put two boat motors in the back of the car. He specifically denied taking the motors or having anything to do with it.
Henry Sims testified that he went fishing at Hargrove’s Reservoir with Sandra Sims, Dwan Criner, Catrina Jeffrey and appellant in appellant’s car. He stated that he, his sister Sandra and Catrina fished. He testified that when they arrived there were no boat motors in the car, but when they came back from fishing there were two in the trunk. Sims stated that he personally saw appellant get one of the motors and stated that appellant said he was going to take the motors to Pine Bluff and sell them.
Sandra Sims testified she had gone fishing with Catrina, Dwan, Henry and appellant in appellant’s car. Once at the reservoir, only she, Henry Sims and Catrina fished. According to her testimony, appellant did not fish, and Criner lay in the car. She stated that when they got back to the car after fishing, one motor was in the back of the trunk and that appellant was toting another one to the car. She testified that “we didn’t bring them [the boat motors] back” but that “Jerrell brought them back.” She stated that they told appellant he shouldn’t take the motors but he said he needed money. She further testified that he asked them to go to Pine Bluff but “we said no, you know, we didn’t want to have nothing to do with it.”
Catrina Jeffrey testified that she too went fishing with the above named persons at Hargrove’s Reservoir. She stated that she didn’t know anything about the motors until they were almost in Stuttgart. She then learned there were two in his trunk and that appellant had put them there. When asked how she knew that, she replied, “cause he said it.”
Appellant alleges that the fact that the above named witnesses were with him during the commission of the offense is evidence that they were accomplices, thereby entitling him to have the jury decide whether they actually were or not. Appellee responds by first noting the undisputed testimony was that although the four did ride with appellant to the reservoir, three of the four fished while appellant was apparently stealing the motors, and the fourth lay in the car, sick, while the theft was going on. All four witnesses testified that it was appellant who stole the motors, and there was no testimony by any of these witnesses to implicate any of the five persons who went to the reservoir except appellant. Their testimony was consistent with one another, with all four denying any part in the wrong doing. Under these circumstances appellee submits the fact that they rode with appellant to Hargrove’s Reservoir and then fished while he stole the motors is insufficient to make their status a question for the jury to decide. Appellee further notes that appellant’s contention that the witnesses were accomplices was not consistent with his defense that he did not go fishing at the reservoir with these four people and knew nothing about the theft of boat motors.
The defendant in a criminal case has the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). The term “accomplice” does not embrace one who had quilty knowledge or who is morally delinquent. It includes only one who takes or attempts to take some part, performs or attempts to perform some act, or owes some legal duty to the victim of the crime to prevent its commission. Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment or knowledge or failure to inform officers of the law, is not sufficient to make an accomplice. Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980). It is well settled that where the evidence does not support an instruction, it should be refused. Powell v. State, 231 Ark. 737, 332 S.W.2d 483 (1960). One’s status as an accomplice is a mixed question of law and fact and the issue must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).
Upon our review of the record, we find there was evidence from which the jury could have found the four witnesses to be accomplices. They were acquainted with appellant and were passengers in his automobile. Furthermore, each of the four testified he or she was with appellant at the scene of the alleged crime on or about the time the two boat motors were discovered missing and all failed to divulge this information until questioned by law officers. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982), sets forth what test is to be applied to determine whether the jury is to be given an instruction as to an accomplice. Roleson, supra, cited Burke v. State, 242 Ark. 368, 413 S.W.2d 646 (1967), for the following proposition:
The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.
On the evidence presented here, appellant would not have been entitled to an instruction that the four witnesses were accomplices as a matter of law; however, their status as accomplices was in dispute and the court should have given AMCI 403. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). The determination of their status is clearly within the province of the trier of fact. Accordingly, the trial court erred in refusing to instruct the jury so as to allow it to determine the status of the four witnesses and we reverse and remand for new trial.
Appellant’s final point for reversal alleges that the trial court erred in allowing the State to amend the information charging appellant with theft of property. The original information stated:
The said defendant on the 14th day of October, 1982, in the Northern District of Arkansas County, did then and there unlawfully . . . (Emphasis added)
The information was amended to state:
The said defendant on or about the 14th day of October, 1982, in the Northern District of Arkansas County, did then and there, unlawfully . . . (Emphasis added)
On the day of trial the State moved to amend the information over the objection of the appellant. Appellant argues that this amendment endangered his right to a fair trial and destroyed his defense wherein he was prepared to offer witnesses to show he was somewhere other than at the scene of the alleged crime on October 14, 1982. Pursuant to the authority of Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979), appellant may have been entitled to a continuance; however, it was not requested by appellant. The record reflects that the prosecutor had earlier advised defense counsel of his amendment and advised him that the State would not object to a motion for continuance. The prosecutor stated that defense counsel indicated to him that no continuance would be requested. In addition to the foregoing, Ark. Stat. Ann. § 43-1015 (Repl. 1977), provides that a statement in the information as to the time the alleged offense is committed is immaterial except where time is a material ingredient in the offense. See also, Scoggins v. State, 258 Ark. 749, 528 S.W.2d 641 (1975), and Payne v. State, 224 Ark. 309, 272 S.W.2d 829 (1954). We find no error here.
Reversed and remanded.
Cloninger, J., dissents. | [
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Tom Glaze, Judge.
This is an appeal of a chancery court’s enforcement of a contract for the sale of land and a cross-appeal of the court’s award of actual damages for trespass and punitive damages for assault. We affirm in part and reverse in part.
In 1972, Mary and Thomas Welch, appellants, and Gerald and Bessie Cooper, appellees, entered into a contract for the sale of some land owned by Mrs. Welch. The contract contained a provision giving the Coopers an option to purchase an adjoining parcel. In addition, the contract contained a “forfeiture” clause, providing that in the event of the Coopers’ default, all the previous payments “shall be retained” by Mrs. Welch as rent and liquidated damages. The last clause of the contract contained provisions regarding the payment of property taxes on the land and the payment of rent for the use of the west parcel. That clause provided:
Gerald Dale Cooper has permission to dig and make pond larger and deeper as he deems necessary, and to keep all taxes paid when due. It is also agreed that Gerald Dale Cooper shall have the use of the W 1/2 of SW 1/4 of SE 1/4 of Sec. 17, Twp. 12S, Rge. 29, West, during the life of this contract with rent.
The Coopers made the down payment and made their annual payments on the outstanding balance for the east parcel. Mrs. Welch accepted all the Coopers’ payments through 1978. During this same period and particularly on March 29, 1974, and April 11, 1974, Mrs. Welch’s attorney sent notices to the Coopers informing them that they were in arrears on interest payments owed on the balance for the east parcel. The Coopers made up the arrearages, and Mrs. Welch accepted them.
In October of 1978, Mrs. Welch refused to sell the west parcel to the Coopers when they tried to exercise their option to purchase it. The Coopers filed suit for specific performance in March, 1979. The Coopers’ final payment on the east parcel and a check for the 1973 to 1978 property taxes on the east parcel were returned to them along with a letter from Mrs. Welch’s attorney, dated April 10, 1979, stating they had forfeited their rights under the contract by not paying property taxes due on the land and by not paying rent on the west parcel. The Welches counterclaimed for the rent on the west parcel. They also claimed actual and punitive damages, alleging that Mr. Cooper had committed an intentional trespass and “acts of assault, harassment and invasion of privacy.”
At trial, the appellees testified that from the signing of the contract in 1972 until their receipt of the letter from Mrs. Welch’s attorney in 1979, Mrs. Welch had never objected to the nonpayment of taxes or rent and that whenever the appellees had checked on the property taxes, the appellees found the Welches had alrady paid them. Appellee Bessie Cooper testified that Mrs. Welch mentioned property taxes only after she and her husband sued the Welches for specific performance. Gerald Cooper testified that he and Mrs. Welch had never discused the payment of rent by the Coopers for use of the west parcel. Mrs. Welch, on the other hand, testified that there was a separate, oral agreement made in April, 1972, in which Mr. Cooper agreed to pay $350 rent for use of the west parcel. She stated that she repeatedly had asked Mr. Cooper to pay the taxes and the rent and that she had paid the property taxes before they were due to keep the land from being forfeited to the State. However, Mrs. Welch also stated that she paid property taxes on all real estate she owned, including the land in question, but never had sent the Coopers any notice informing them of the amount they owed her for the taxes she paid on the east parcel. She admitted that the notices to the Coopers about their interest payment arrearages did not mention their failure to pay property taxes or rent. She stated that she continued to accept payments from the Coopers on the east parcel despite their nonpayment of property taxes and rent on the west parcel, because she felt they would eventually pay her the property taxes and rent they owed.
On October 19, 1978, the Coopers sent Mrs. Welch a letter informing her that they intended to exercise their option to purchase the west parcel. The letter, containing an initial $500 payment, was returned to them marked “Unclaimed.” Mrs. Cooper testified that, prior to mailing the letter, she had told Mrs. Welch that they (the Coopers) intended to exercise their option to purchase the west parcel, but Mrs. Welch responded that she did not want to sell the west parcel. Mrs. Welch countered that she had not received the letter of October 19, 1978, nor had she ever discussed the option provision of the contract with Mrs. Cooper. In addition, Mrs. Welch related that Mr. Cooper repeatedly came to her house intoxicated and verbally abused her. She also stated that Mr. Cooper had driven a bulldozer onto property owned by her son and grandson and had uprooted a mulberry tree in the summer of 1980. Mr. Cooper denied harassing Mrs. Welch and denied knocking down the mulberry tree.
In his decree, the chancellor ordered specific performance of the contract for the sale of the east and west parcels. The Coopers were ordered to pay the $467.88 in principal, interest and taxes remaining on the east parcel and the full purchase price for the west parcel. He did not award the Welches any payments for rent on their west parcel, but he did award them $500 in punitive damages for harassment and $250 actual damages to the mulberry tree.
On appeal, appellants argue that the contract is unenforceable because the appellees did not pay taxes on the land and did not pay an annual rent of $350 on the west parcel. Appellees contend they did not breach the contract because appellants paid the property taxes themselves and because there was no duty on appellees to pay rent on the west parcel. Appellees also contend the appellants, by their conduct, waived any claim they might have had for either the taxes or rent. The chancellor found that the appellants, by accepting payments each year for the east parcel, waived their right to declare a forfeiture of the contract by appellees. He also found that the appellees had properly exercised their option to purchase the west parcel of land.
Of course, chancery cases are tried de novo on appeal, and the appellate court does not reverse the chancellor’s findings of fact unless they are clearly erroneous (clearly against the preponderance of the evidence). Ark. R. Civ. P. 52(a); Ballard v. Carroll, 2 Ark. App. 283, 621 S.W.2d 484 (1981). The applicable or governing Arkansas case law concerning the waiver of the right of forfeiture is also clear. There is no doubt that a vendor may, by his acts and conduct, waive his right of forfeiture. Such a waiver will be found to exist when the vendor habitually accepts delinquent payments. Ashworth v. Hankins, 248 Ark. 567, 452 S.W.2d 838 (1970). See also Truemper v. Thane Lumber Co., 154 Ark. 524, 242 S.W. 823 (1922); Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989 (1909). According to Arkansas law, in most cases, the question of waiver is one of fact. Freeman v. King, 10 Ark. App. 220, 662 S.W.2d 479 (1984). Also, we must review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in the favor of the decree. Arkansas State Highway Commission v. Oakdale Development Corporation, 1 Ark. App. 286, 614 S.W.2d 693 (1981). From our review of the facts in this cause as set out above, we believe the chancellor’s findings that the appellants had waived their right to declare a forfeiture and that the appellees had exercised their option to purchase the west parcel are not against the preponderance of the evidence.
We must also reject appellants’ other contention that the chancellor erred in refusing to grant them damages for past due rental on the west parcel. In this regard, the chancellor found that the appellants had not met their burden of proof on this issue. Whether there was an agreement between the parties for appellees to pay $850 rent for the use of the west parcel was clearly disputed. That dispute emanates from the parties’ contract itself which lacks specificity regarding rental payments and which fails to recite any dollar amount for rent. The pertinent contractual provision in dispute reads:
It is also agreed that Gerald Dale Cooper shall have the use of the . . . [west parcel] . . . during the life of this contract with rent.
In Arkansas, the general rule is that before a contract may be enforceable, it must be definite and certain in all of its terms. Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (1980). However, the parties, by their conduct, can enable a court to give substance to an indefinite term of a contract. In essence, the court looks to the conduct of the parties to determine what they intended. See Beasley v. Boren, 210 Ark. 608, 197 S.W.2d 287 (1946). Here, the chancellor found no conduct which would establish with any specificity the parties’ intention regarding the payment of rent for the use of the west parcel, and from our examination of the record, we believe his finding was not against the preponderance of the evidence. Ark. R. Civ. P. 52(a).
Appellants also argue that their $500 recovery in punitive damages against appellee Gerald Cooper for his harassment of appellant Mary Welch was insufficient. We cannot agree. In fact, because the trial court found no actual damages for harassment, it erred in awarding punitive damages in any amount. The general rule in Arkansas is that punitive damages cannot be awarded in the absence of actual damages. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559, cert. denied, 449 U.S. 880 (1980). Therefore, the trial court’s award of $500 for punitive damages to the appellants must be set aside.
Appellants also contend that their $250 recovery for actual damages to their mulberry tree when appellee Gerald Cooper trespassed was insufficient. Appellees respond that the chancellor did not have the authority to grant the $250 recovery to appellant Mary Welch because Mary Welch was not the real party in interest to prosecute the trespass counterclaim as required by Arkansas Rules of Civil Procedure 17(a). We agree with the appellees that the chancellor had no such authority.
Appellant Mary Welch admitted that at the time the tree was damaged she did not own the property on which the tree was located; she had previously transferred the property to her son and grandson. In his decree, the chancellor awarded the $250 actual damages to appellant Mary Welch as trustee for her son and grandson. Arkansas Rule of Civil Procedure 17(a) states that the “trustee of an express trust... may sue in his own name without joining with him the party for whose benefit the action is being brought.” Here, no express trust existed. In Arkansas, such a trust can never be implied or arise by operation of law and can be proved only by some instrument in writing signed by the party enabled by law to declare the trust. Hunt v. Hunt, 202 Ark. 130, 149 S.W.2d 950 (1941). See also Morris v. Boyd, 110 Ark. 468, 162 S.W. 69 (1913). Clearly, the chancellor had no authority to grant $250 actual damages to appellant Mary Welch as trustee for her son and grandson, for no such relationship had been created by the parties. Thus, we also set aside this award.
On their cross-appeal, appellees contend the chancellor erred in ordering them to make a lump sum payment for the west parcel. They argue that this acceleration of payment was, in effect, a reformation of the contract. Because neither party requested a reformation of the contract, appellees feel the chancellor erred in ordering a lump sum payment. However, in their amended complaint, the appellees, as plaintiffs, pleaded:
That plaintiffs are entitled to a decree for specific performance from this court ordering the defendant, Mary Gentry Welch, upon payment of the agreed purchase price to convey the following described property.
The agreed purchase price for the west parcel was $500 down and $190 an acre according to the original contract. The appellees had tendered the $500 down payment to appellant Mary Welch in 1978 and periodically had made the payments on the balance of the west parcel, but those payments were refused by Mary Welch. Appellees testified during trial that they had the money to pay the balance and would do so if the court ruled in their favor. The chancellor took the appellees at their word and ordered the balance payable. We find no reversible error in his having done so.
Affirmed in part and reversed in part.
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Smith, J.
Upon an information filed by the prosecuting attorney, Jackson was removed from the office of constable for drunkenness and incompetency, and was adjudged to pay the costs. The court was moved to assess a fine against •him, but declared that it had no power to impose a fine. The court also refused to order that, if the costs were not immediately paid, the defendant should be confined in the county jail. It further denied a motion to tax a fee of $10 to the prosecuting attorney. The state appeals.
In a proceeding to remove an officer, the judgment extends only to removal, costs following as an incident. No fine or other punishment can be inflicted, because the re moval may be for causes which involve no criminality. Thus, in Whitlock’s case, lfiL Ark., Ifi3, a justice of the peace was removed because he was subject to epileptic fits, which incapacitated him from performing the duties of the office. If the removal is for criminal conduct, the «crime is punishable in a separate proceeding. Nor is there any law which authorizes the imprisonment of a defendant for the non-payment of costs, except where th.e judgment is also for fine or imprisonment. Compare Mansfield’s Digest, secs. 3318, 3350, 1310 and 1313. Such authority must be expressly conferred by statute and will never be inferred. The costs in a proceeding of this sort constitute a mere debt to the officers of the court, for which the defendant becomes liable upon his removal. But he cannot be made to work out such costs. The only remedy is by execution, imprisonment for debt being abolished. State v. Erwin, 44 Iowa, 637; State v. Kenny, 1 Bailey (S. C.), 375; State v. Sibley, 4 Lea (Tenn.), 738.
It is not customary in judgment entries to give particular directions for the taxation of costs. The presumption is the clerk knows his duties and will discharge them. But treating this as an application by the prosecuting attorney to the court below to retax the costs, upon the clerk’s refusal to include his fee in such taxation, we may say that he is entitled to a fee of $5 under section 3233 of Mansfield’s Digest, which allows that sum “ for each judgment obtained on complaint, information or otherwise, in the name of the state or any county.”
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Donald L. Corbin, Judge.
This is an appeal by appellant Ruby Brown, individually and as executrix of the estate of Jesse Brown, deceased, from a summary judgment in favor of CUDIS Insurance Society, Inc., and CUNA Mutual Insurance Society. We affirm.
On or about April 28, 1982, Jesse Brown, appellant’s deceased husband, borrowed money from Bakem Credit Union to purchase a 1982 Oldsmobile. He executed two promissory notes totaling$10,781.85. When these loans were made, there was in force a group creditors disability insurance policy issued by CUDIS Insurance Society to Bakem Credit Union. Jesse Brown applied for group credit disability insurance for both loans. The insurance policy provided that if the disability for which benefits were claimed began within six months after the date the insurance became effective and for which the member had received medical treatment within six months before the date of insurance, there would be no coverage. Jesse Brown became disabled on May 10 or 11, 1982. His disability resulted directly or indirectly from or was contributed to by chronic myelocytic leukemia. The record reflects that he had received medical advice, consultation, and treatment for that illness during the six months before the effective date of the insurance.
When the loans were made, there also was in force a group credit life insurance policy issued by CUNA Mutual Insurance Society to Bakem Credit Union. That policy provided that no benefit would be provided for death if a material contributing cause of death was a sickness which became manifest prior to the time insurance coverage became effective and if the death occurred within six months after the effective date of insurance. Jesse Brown died on October 25, 1982, which was within six months of the time the insurance became effective on April 28, 1982. Death occurred from chronic myelocytic leukemia, which was manifested in Jesse Brown before April 28, 1982, the effective date of the insurance.
Appellant Ruby Brown made timely application for both the disability insurance and the credit life insurance through Arkansas Central Credit Union who had succeeded Bakem Credit Union. Both claims were denied by appellees citing Mr. Brown’s preexisting condition.
After Arkansas Central Credit Union repossessed the automobile, appellant brought suit to recover the disability and credit life proceeds to apply them against the indebtedness due Arkansas Central Credit Union. The suit claimed the appellees were estopped, as the insurer accepted the first premium payment made by Jesse Brown subsequent to his total disability.
The issue on appeal is whether the trial court erred in granting summary judgment on the basis that the doctrines of waiver and estoppel do not apply in this case because the credit union was not an agent for the two insurers.
Appellees moved for summary judgment which appellant did not respond to in writing. A hearing was held and the trial court granted appellees’ motion for summary judgment. At the hearing, appellant argued that the exclusions from coverage in the two policies were waived by the insurance companies or that the insurance companies were estopped from relying on those exclusions. Appellant alleged that the claims of waiver and estoppel were based on the actions of the credit union. Appellant claimed that the credit union knew of Jesse Brown’s leukemia when it made the loans that were the subject of this lawsuit and filled out the applications for credit life and credit disability insurance. Appellant contended that the credit union acted as agent for appellee insurance companies and that the credit union’s knowledge of the leukemia should be imputed to appellee insurance companies.
Mr. Brown became totally disabled before the first payment on either loan was due. An attorney employed by Mr. Brown submitted payments to the credit union with a letter in which he stated that Mr. Brown could not have been aware of his impending disability when he obtained disability insurance and in which he stated that the first payments on the loan were being submitted to negate any possible defense by the insurance company.
Appellant admitted that the credit union, not the credit union member, Mr. Brown, was the insured under the policies. The policies provided insurance to the credit union if its member was unable to repay loans made by the credit union because of total disability under the terms of one policy or death under the terms of the other policy.
Appellant admitted in response to requests for admissions that Jesse Brown’s disability resulted from or was contributed to by the leukemia; that he became totally disabled before June 30, 1982; and that he had received medical treatment for the leukemia during the six months before April 28, 1982, the effective date of the insurance policies.
The trial court rejected the application of the doctrines of waiver and estoppel by adopting as more persuasive the rule that as a matter of law the credit union was not an agent for appellee insurance companies. It relied upon Sadtler v. John Hancock Mutual Life Ins. Co., 291 A.2d 500 (1972), in its decision. The trial court believed that it would be unfair to appellees to adopt the opposite rule since the credit union had a direct economic interest in having the policies in force. Also, the credit union would be able to bind appellee insurance companies to payment of the policies by waiving requirements under the policy or committing acts that would estop appellee insurance companies from denying coverage. We reject the rule adopted by the trial court because we have applicable Arkansas law on the subject.
The sole argument presented by appellant in her brief is that there was a dispute about the facts and that the facts could have supported a finding that the credit union was the agent of appellee insurance companies.
We agree with appellees that the doctrines of waiver or estoppel cannot be invoked to extend coverage and thereby bring into existence a contract not made by the parties. This principle of law is best illustrated in the case of Life & Casualty Ins. Co. of Tenn. v. Nicholson, 246 Ark. 570, 439 S.W.2d 648 (1969). In Nicholson, supra, a mother purchased a policy to cover her son for death or loss of sight or limb. The policy provided coverage only for losses resulting from diseases contracted after the effective date of the policy. The boy lost the sight in one eye due to a condition in existence before the policy was purchased. She successfully argued at the trial level that since the soliciting agent knew about her son’s condition when the policy was purchased, there was a waiver of the condition because premiums were accepted. The Arkansas Supreme Court reversed and denied the claim, stating, “We find no waiver under the facts in this case ... It is well settled in this state that the doctrines of waiver and estoppel, based upon the conduct or action of the insurer, cannot be used to extend the coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom.”
The most recent case in which this doctrine was applied is Peoples Protective Life Ins. v. Smith, 257 Ark. 76, 514 S.W.2d 400 (1974). Clarence Smith was an employee of Moore Ford. He became totally disabled on June 18, 1970, and died on March 4, 1972. For many years Mid-West National Life Insurance Company provided group life and health insurance to the employees of Moore Ford. That policy extended through the end of 1970, by which time Clarence Smith had been totally disabled for a number of months. He never worked as a full-time employee at Moore Ford after June 18, 1970. Peoples Protective Life, the successor of Mid-West, issued a new group life and health insurance program to the Moore Ford employees on January 1, 1971. It provided that only full-time employees were eligible for coverage. Smith never worked for Moore Ford while the Peoples policy was in force. He paid premiums on the policy to Moore Ford, which remitted the premiums to Peoples Protective as if Smith was an employee. Moore Ford also listed him on the reports to Peoples Protective as a full-time employee. The circuit judge held that there was coverage under the group life policy for Smith’s death.
In reversing, the Arkansas Supreme Court held first that there was no coverage for the loss because Smith never qualified for coverage since he was never a full-time worker. The Court also pointed out that Smith’s widow, who was the beneficiary of the policy, had the burden of proving coverage. The Court also held that there was no waiver or estoppel based on the fact that Smith had paid premiums from the time the policy went into effect until his death and the fact that Smith had made several claims for medical payments under the policy, which claims allegedly alerted the company to his terminal cancer. The Court held that the doctrines of waiver and estoppel could not be invoked to extend coverage and thereby bring into existence a contract not made by the parties. It quoted extensively from Couch on Insurance in part as follows:
The doctrine of waiver or estoppel cannot be given the effect of enlarging or extending the coverage as defined in the contract, nor can it create a contract of insurance, since a cause of action cannot be based on a waiver.
The doctrine of waiver or estoppel, based upon the conduct or action of the insurer, is not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom, and the application of the doctrine in this respect is to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture. . .
A cause of action cannot arise on the theory of estoppel. . .
There is another line of cases, which, at first glance would lead us to a different result. Home Mutual Fire Ins. Co. v. Riley, 252 Ark. 750, 480 S.W.2d 957 (1972), is representative of this divergent line of cases.
Dr. Riley owned a rent house next door to his clinic. Home Mutual insured the house against loss by fire. The policy contained a standard provision that there would be no liability for loss if the described property remained unoccupied for a period beyond thirty days. The house burned thirty-four days after being vacated on May 29,1970.
Home Mutual Fire Insurance Company denied liability for the loss of the building owed by Dr. Riley under the policy by virtue of the nonoccupancy clause. Dr. Riley argued that this provision was waived. Dr. Riley was awarded judgment on the grounds of waiver and estoppel. The Supreme Court affirmed, and quoted from a previous decision as follows:
The doctrine is firmly established by the highest courts in this country, and approved by us in numerous cases, that ‘forfeitures are not favored in law,’ and that ‘courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop, and ought to estop, the company from insisting on a forfeiture, though it might be claimed under the express terms of the contract.’
One key evidentiary fact was that the agent, Dessie Pitts, was a general agent who had authority to bind the company. She told Dr. Riley, “that he had insurance on the building, period, but that they denied it on the equipment.” This case did not turn on any single act standing alone but on the totality of the activities which included the knowledge of the company of the unoccupancy of the building, the agent’s ability to bind the company; the nonremittance of any prepaid premiums and the course of action on the part of the insurer, which led Dr. Riley to honestly believe that, by his conformity thereto, a forfeiture of his policy would not occur.
A careful reading of Nicholson and Riley, supra, leads us to the conclusion that the cases are distinguishable and that Nicholson is controlling in the case at bar. Here, a forfeiture was not attempted by appellee insurance companies as was the case in Riley, supra. The question here was the extent of the coverage of the policies. It is clear that appellee insurance companies refused to extend their coverage. The record also reveals that appellees did not have any direct contact with the insured as was the case in Riley, supra.
It is well settled that summary judgment is an extreme remedy and should be granted only in the absence of a genuine issue as to a material fact remaining to be decided. Chick v. Rebsamen Insurance, 8 Ark. App. 157, 649 S.W.2d 196 (1983). Outside of the pleadings, there is nothing in the record here to indicate a remaining genuine material issue of fact. Appellees filed a written motion for summary judgment to which appellant did not respond in writing. The hearing onf the motion for summary judgment was not recorded and no additional evidence was presented. In her response to Requests for Admissions, appellant admitted that Jesse Brown’s disability resulted from or was contributed to by leukemia, that Jesse Brown became totally disabled before June 30, 1982, (3 days before the 6 month exclusion ended), and that Jesse Brown had received medical treatment for leukemia during the six months before April 28, 1982, the effective date of the insurance policies. Appellant also admitted in her response to Request for Admissions that the six month exclusionary clause was in the policy. See, also, Wilkinson v. Amos Enderlin Contr. Co., 7 Ark. App. 56, 644 S.W.2d 313 (1982). Appellees also introduced the policy that contained provisions that the credit union was not their agent.
In view of the pleadings, the exhibits which included the contracts of insurance and appellant’s responses to Requests for Admission, we cannot say that the trial court erred in granting summary judgment in favor of appellees on the basis that waiver and estoppel did not apply.
Affirmed.
Mayfield, C.J., and Glaze, J., agree. | [
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STATEMENT.
Cockrill, C. J.
A. C. Jeffery & Co., on the 5th day of September, 1878, executed in Izard county, • Arkansas, their promissory note for $2,154.33 to John Chaffe & Sons, due January 15, 1879, to bear interest at 10 per cent, per annum from date till paid, in settlement of an account due the latter firm. On the same day A. C. Jeffery, one of the firm of A. O. Jeffery & Co., executed his note for $8,000 to John Chaffe & Sons, due eight months after date, bearing interest at 8 per cent, per annum from maturity until paid, and also executed a mortgage on 509 acres of land in Izard county, in which it was recited that the last note and mortgage were given as collateral security for, and were to become void on payment of the firm note. Jeffery died. The firm note was not paid, and to a complaint to foreclose the mortgage for the amount of the firm indebtedness, the heirs and representatives of Jeffery answered that the second note was tainted with usury, which rendered it and the mortgage securing it void.
The court found that the answer was sustained, and the complaint was accordingly dismissed. No proof of the transaction between the parties at the time of executing the notes was taken, the defendant relying solely upon the following clause in the mortgage to sustain the answer, viz.: original indebtedness of A. C. Jeffery & Co. first above mentioned and described, for which indebtedness the said $3,000 note secured by this conveyance is given and held as collateral security, and at the'maturity thereof, if in the meantime the said A. C. Jeffery & Co. shall not have paid their indebtedness to John Chaffe & Sons, Moses M. Greenwood, who is made a trustee for the purpose of this trust, shall proceed, after giving at least thirty days’ notice, by written or printed handbills posted up in at least ten public places in the county of Izard, to sell all the above described lands with all and singular the improvements,, privileges and appurtenances thereto belonging, for cash, and pay, first, the expenses of said sale and this trust; secondly, pay the said $3,000 note to the said John Chaffe & Sons, and the remainder, if any, to be paid over to the said A. C. Jeffery or his legal representatives.”
“Now this'deed of conveyance is made upon this con•dition: That whereas the said Augustus O. Jeffery and W. C. Dixon, partners in business at Mt. Olive, Izard county, Arkansas, are indebted to the said John Chaffe & Sons in the sum of $2154.33, for which amount the said John Chaffe .& Sons hold a note against A. O. Jeffery & Co., who are the said Jeffery and Dixon above named and which note ■is to fall due in January, 1879: Now, in ease the said A. C. Jeffery & Co. shall fail or refuse to pay off and discharge said indebtedness to the said John Chaffe & Sons, then a certain promissory note executed by the said A. C. Jeffery •at Melbourne, September 5, 1878, for $3,000, due at eight months from date, and payable to John Chaffe & Sons, with 8 per cent, per annum interest from maturity, shall be in full force against the said A. C. Jeffery, in lieu of the
OPINION.
It is not claimed that there was usury in the firm note. Jeffery was severally liable for its payment. The execu-( tion of his individual note in like amount for the same indebtedness would have created no other or different liability. It is clear, from the written agreement of the parties, that it was not the intention that the creditor should ever claim the aggregate amount of the two notes. Jeffery’s individual note and the mortgage securing it, were to stand as collateral security for the firm debt. But to insure the prompt payment of the amount due, the individual note, although given for the firm indebtedness, was executed for an amount largely in excess of the actual debt. The two notes have the appearance of being parts of one transaction. By the arrangement, Jeffery was to have the option of discharging the debt in January, 1879, or at any time before the maturity of his individual note, several months thereafter, by the payment of the amount found due on the settlement with Chaffe & Sons in the preceding September, and legal interest. If he failed to discharge his partnership obligation within that time, then the intention of the parties was that he should be mulcted in an additional sum — that is, the difference between the partnership debt and interest, and the amount specified in his separate note.
It was settled a long time ago, in England, that “ wherever it is in the power of a known borrower of money to pay the principal within a limited time without interest, upon non-payment the reservation of a larger sum than the statute allows is no usury.” Floy v. Edwards, 1 Cowper, 112, 115.
The language quoted is reported as Lord Mansfield’s, and he cites Hawkins, P. G., c. 82, sec. 19, to the same effect. The doctrine has never been doubted or departed from by the courts of that country, and at an early day it was announced by the Supreme Court of the United States in this language: “ Where a party agrees to pay a specific sum, exceeding the lawful interest, provided he does not pay the principal by a day certain, it is not usury, for the reason that by the punctual payment of the principal, he may avoid the payment of the sum stated which is considered as a penalty.” Lloyd v. Scott, 4 Pet., 205. The same doctrine has been announced and applied by many of the state tribunals, and was recognized by this court in the case of Trader v. Chidester, 41 Ark., 242, 247, where a stipulation in a promissory note to pay an amount over and above the principal and interest as an attorney’s fee, in the event of an action on the note, was held to be a penalty, and for that reason did not render the contract usurious. See, too, Boozer v. Anderson, 42 ib., 167.
The rule, generally recognized, is, that wherever the debtor, by the terms of his contract can avoid the payment of a larger sum by paying the amount actually due and lawful interest at an earlier day, the contract is not usurious, but the difference between the two sums is regarded as a penalty. Gaar v. Louisville Banking Co., 11 Bush. (Ky.), 189; Witherspoon v. Musselman, 14 ib., 214; Conrad v. Gibbon, 29 Iowa, 120; Weyrich v. Hobleman, 14 Neb., 432; Wilson Sewing Machine Co. v. Moreno, 6 Sawy., 38; 2 Pars. Const., 116, n. (s.); Pars. N. and B., p. 413; Tyler Usury, 210.
But contracts of this character are closely scrutinized, and if what is termed a penalty is intended as a contrivance to avoid usury, the arrangement will be declared usurious. Lord Mansfield thought it necessary to guard against the abuse of the prineiple announced by him, by the declaration often quoted, that where the real intent is a loan, or forbearance of money, and more than legal interest is taken, “ the wit of man cannot find a shift to take it out of the statute.” 1 Cowper, sup.; Sumner v. People, 29 N. Y., 337. But the intention must be manifested either by the written agreement or extraneous proof. In the absence of a showing that it was so intended in this case, we must regard the excess over the amount due simply as a penalty, to be relieved against by the court (Boozer v. Anderson, supra), as the debtor did not relieve himself by paying the smaller sum at the earlier day. The appellants, wisely, do not seek to enforce the penalty, but ask only what is actually due — that is, the amount found due on the settlement, and 10 per cent, interest in accordance with the original agreement between the parties : and the decree must be reversed and the case remanded with instructions to enter a decree for the appellants in accordance with the prayer of the complaint. | [
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Lawson Cloninger, Judge.
In this case, appellee, Gazaway Lumber Company, Inc., was granted a material-man’s lien against the home of appellants, Cecil and Betty Jo Ragsdell, for an indebtedness of $7,087.44. In the same decree, appellee, Security Bank of Paragould, was granted an in rem judgment in the amount of $107,930.58 and a decree of foreclosure of its mortgage against appellants’ home and other property. The indebtedness owed to Security Bank of Paragould was declared a first lien against the property, and Gazaway Lumber Company’s lien was subject only to that of Security Bank of Paragould.
For reversal, appellants contend that there was no compliance with the requirements for a materialman’s lien, and that Security Bank of Paragould’s mortgage was defective. We affirm the decision of the chancellor in part and reverse in part.
We agree with the contention of appellants that the requirements for perfecting a materialman’s lien were not complied with. Ark. Stat. Ann. § 51-601 (Repl. 1971) is in derogation of the common law and must be strictly construed since it provides an extraordinary remedy that is not available to every merchant. Valley Metal Works v. A. O. Smith-Inland, 264 Ark. 341, 572 S.W.2d 138 (1978).
The manager of Gazaway Lumber Company testified that he had no idea whether the materials Gazaway furnished were delivered to appellants’ home. Appellant Cecil Ragsdell testified that he did not know whether any of the materials purchased from Gazaway by the absconding contractor were put into his house. The burden is on the materialman to show that the materials for which he claims a lien were used in the improvements on which the lien is sought. Eudora Lumber Co. v. Neal & Jones, 263 Ark. 40, 562 S.W.2d 294 (1978). Appellee Gazaway Lumber Company failed to offer any proof that the materials it furnished were incorporated into appellants’ property, and it was clearly erroneous for the trial court to find that Gazaway had complied with the requirements for a materialman’s lien. We reverse that part of the decree which holds that Gazaway Lumber Company was entitled to a materialman’s lien against appellants’ property. Our ruling on this issue does not foreclose any right of action which Gazaway may have against appellants for debt.
Appellants urge that Gazaway was not in compliance for a number of other reasons, but it is unnecessary to consider those contentions.
The chancellor was correct in finding that the mortgage executed by appellants to appellee, Security Bank of Para-gould, was valid and that appellants had effectively waived their homestead interest in the property.
Appellants failed to abstract the mortgage instrument, but we have examined the instrument furnished by Security Bank of Paragould. The mortgage was duly executed by both Cecil Ragsdell and Betty Jo Ragsdell as grantors and both signed in all the required spaces. There is a total lack of evidence to indicate that either appellant was unaware of the consequences of the execution of the mortgage. The issue of whether appellants effectively waived their homestead rights is settled by the decision of the Arkansas Supreme Court in the case of Mayfield v. Sehon, 205 Ark. 1142, 172 S.W.2d 914 (1943). In Mayfield, the wife’s name did not appear as a grantor in the granting clause of the deed of trust. Her name was mentioned at the end of the deed and she did sign the document. However, the word homestead was not used in any place in the deed of trust. The court held that it was not essential that a wife’s name appear in the granting clause nor was it essential that the word homestead be used in the deed of trust in order for one to waive his homestead exemption.
In the instant case, both the husband and wife signed as grantors, and each conveyed his title. The consideration for the conveyance was the money borrowed from the bank by appellants, and the purpose of the mortgage was to convey the whole title to the land as security for the repayment of the loan. Mayfield v. Sehon, supra.
That part of the chancellor’s decree which found that Gazaway Lumber Company was entitled to a materialman’s lien is reversed, and that part of the decree finding that the mortgage held by Security Bank of Paragould was valid is affirmed.
Mayfield, C.J., and Glaze, J., agree. | [
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Melvin Mayfield, Judge.
This case involves the liability coverage of a homeowner’s insurance policy issued by the appellant to the appellee.
The appellee, Johnathan Reynolds, was employed by Natural Resources, Inc., a company primarily engaged in the growing and selling of timber. Appellee’s father was the owner and president of the company and appellee was the timber manager for about 600 acres of the company’s timberland. Appellee’s duties included spotting the timber to be sold, negotiating prices, checking the timber to see that it was properly cut, maintaining the boundary lines, and protecting against theft, fire, and arson.
For about three weeks prior to the incident giving rise to this suit, appellee had been aware that timber was being cut and removed from the company’s land without authorization. He reported this to his father who contacted the sheriff’s office, and appellee was instructed to work with the sheriff and his deputies to stop the stealing. Appellee went to the sheriff’s office, discussed the matter with some deputies, and was told to keep on the lookout for the thieves and try to find out who they were.
A few days later appellee discovered three men cutting timber without authorization. He had seen two of them on the land before and had been told that they might be the timber thieves and that they were armed and dangerous. Without making his presence known, the appellee watched these men load the timber into a truck and drive away. He reported this information to the sheriff’s office. After some discussion, it was decided that the value of the timber appellee saw cut and carried away would not amount to a felony and that he should try to catch the men stealing some more timber so they could be charged with a felony.
On October 19, 1978, appellee was in the woods and heard a chainsaw. He drove closer, and taking his 30.06 rifle, he got out of his vehicle and walked to within 40 or 50 yards of where some timber was being cut. At that point he could see two trucks. One truck, loaded with timber, began to pull away and appellee shot out a rear tire. The driver got out and began walking toward the other truck. He was one of the men appellee had seen cutting the timber on the earlier occasion. Appellee told him to stop, and when he did not comply, appellee fired a shot into the motor and another shot into a tire of that truck. Another man, Finis Lee, then appeared from the woods and walked toward appellee. Four times the appellee called upon Lee to stop but Lee, cursing appellee, continued to advance toward him. Appellee then fired a shot into the ground near Lee; the bullet shattered and fragments ricocheted into Lee’s leg.
Appellee testified that when he fired that shot he did not intend to inj ure Lee and that he could have hit him ten out of ten times if that had been his purpose. He said it was a warning shot fired for self-protection; that arresting Lee or stopping him from stealing timber did not cause him to fire the shot; and that it was fired for his own defense. He did admit, however, that he shot the trucks to disable them and let the sheriff proceed from there.
Lee filed suit for personal injuries and damages against appellee. The appellant denied coverage under the “business pursuits” and the “expected or intentional injuries” exclusions of the policy. The personal injury suit is still pending and the case here is a declaratory judgment action in which the appellee has obtained a judgment that appellant must defend the suit brought by Lee and pay any sum that may be found due by appellee to Lee.
The “business pursuits” exclusion of the policy provides that the liability coverage does not apply “to bodily injury or property damage arising out of business pursuits except activities therein which are ordinarily incident to non-business pursuits.”
The trial court, sitting without a jury, found as follows:
The Court finds that the shot which injured Mr. Lee did not arise out of the business pursuits of Mr. Reynolds, but arose out of his sense of self-protection in what he perceived to be a threat to his person from Mr. Lee and his associates. He was not at that point protecting the property of his employer, but protecting himself. The injury to Mr. Lee did not “arise out of” Mr. Reynolds’ business pursuits. It did arise out of Mr. Lee’s own actions. The Court finds that Mr. Reynolds’ act of firing the shot which injured Mr. Lee was an activity “ordinarily incident to non-business pursuits.”
The parties have cited a number of cases to support their positions in this matter. The factual situations are so varied and the ways in which the issue reaches the appellate court so different, it is really not possible to formulate a concise statement that will explain the results reached, and it would not be helpful to make an extensive review of the specific cases. We start, therefore, with some general observations.
In 7A Appleman, Insurance Law and Practice % 4501.10 (Berdal ed. 1979), it is said, “Whether an activity is a business pursuit is almost always a factual question presented for the determination by a court.” In that regard, in Comm. Union Ins. Co. of Amer. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977), it was said that “the courts strictly interpret exclusions from insurance coverage and resolve all reasonable doubts in favor of the insured who had no part in the preparation of the contract,” and that “the burden of proof is on the insurer to show that an injury was caused by an excepted event.” It is also clear that the exclusion does not apply to all injuries or damages arising out of a business pursuit since the clause itself explicitly states “except activities therein which are ordinarily incident to non-business pursuits.” This is pointed out in the 1982 pocket supplement to 7A Appleman, Insurance Law and Practice, supra. In the supplement to section 4501.10, footnote 11 contains the following comment on a case cited there:
The court failed to even consider the effect of the exception. The mere fact the insured is engaged in a business pursuit is not enough. It must also not be an activity ordinarily incident to nonbusiness pursuits.
In our case, the trial court relied upon Farmers Insurance Exchange v. Sipple, 255 N.W.2d 373 (Minn. 1977), where the insured, Andrew Baud, employed as a senior highway technician and assigned to a project involving the construction of an interstate highway, met with John Sipple, a local farmer who thought the construction would create drainage problems on his land. While Baud and Sipple were viewing the Sipple farm, they exchanged heated words and Baud struck Sipple with his fist and injured him. A suit for damages was brought by Sipple. Baud’s insurance company denied coverage under the “business pursuits” exclusion. A declaratory judgment was then filed and the trial court found, as a matter of law, that the exclusion did not apply. In affirming, the Minnesota Supreme Court relied upon a prior decision in which it had noted that the exclusion should be construed with reference to the particular facts of each case, and the court quoted the following from Frazier, The “Business Pursuits” Exclusion in Personal Liability Insurance Policies. What the Courts Have Done With It, 1970 Ins. L. J. 519, 533:
There seems almost unanimous accord in the decisions that the location at which an act is performed is not decisive on the question of whether the act constitutes part of an excluded business pursuit. Rather, it is the nature of the particular act involved and its relationship, or lack of relationship, to the business that controls. Personal acts, such as pranks, do not become part of a business pursuit, so as to be outside of the coverage, merely because performed during business hours and on business property. In order for an act to be considered part of a business pursuit it must be an act that contributes to, or furthers the interest of, the business and one that is peculiar to it. It must be an act that the insured would not normally perform but for the business, and must be solely referable to the conduct of the business.
The court said the assault arose out of a business setting, but was not an act peculiar to the business activities of the insured.
The previous case that Sipple relied upon is Milwaukee Mutual Insurance Co. v. City of Minneapolis, 239 N.W.2d 472 (Minn. 1976), where a police officer, while in the roll-call room just prior to the start of his shift of duty, accidentally shot a fellow officer while they were handling a service revolver and discussing its trigger pull. The trial court held that the exclusion clause did not apply, and in affirming, the appellate court said the trial court was not clearly erroneous in holding that pistol handling and trigger-spring checking were activities ordinarily incident to nonbusiness pursuits.
One of the cases cited by the appellant is Martinelli v. Security Insurance Co. of New Haven, 490 S.W.2d 427 (Mo. Ct. App. 1972), where Martinelli, while on the job, was pushing a large box onto a forklift and had his right leg outstretched to brace himself, when a fellow employee fell over the leg causing it to be fractured. The fellow employee had a homeowner’s policy in force with the same “business pursuit” exclusion as is involved in the instant case. The appellate court, holding the exclusion applicable, said that walking or bumping into another employee at work may or may not be an activity incident to a nonbusiness pursuit; but since in that case, the incident took place while the insured was walking down an aisle on the way to get something for use in his work, it occurred while the insured was in furtherance of his business pursuits, therefore, it was not an activity ordinarily incident to a nonbusiness pursuit.
On the other hand, the injury caused by the insured in Martinelli arose out of the insured’s employment, and if not peculiar to his employment, it was solely referable to the conduct of that employment because his only reason for walking down the aisle was to accomplish his employer’s work. There simply was no activity involved which could be ordinarily incident to a nonbusiness pursuit. All he was doing was walking and that was a part of his work.
Further consideration of specific cases would probably not be helpful since, as noted in Robinson v. UTICA Mut. Ins. Co., 585 S.W.2d 593 (Tenn. 1979), the language of this exclusion clause has been the subject of many cases with divergent results for different reasons, and its application is “resolvable only in specific factual contexts.” In summary, therefore, we think the burden of proof was on the appellant to show that the injury in this case was excluded from the policy’s liability coverage; that the exclusion clause should be strictly interpreted with all reasonable doubts resolved in favor of the insured; that the issue involved is a question of fact; that the trial court’s finding was not clearly erroneous and, under Civil Procedure Rule 52(a), that it should be affirmed.
As to the “expected or intentional injuries” exclusion, little more needs to be said. The same rules of construction and burden of proof apply to this exclusion as apply to the other exclusion which we have discussed. In Talley v. MFA Mutual Ins. Co., 273 Ark. 269, 620 S.W.2d 260 (1981), it was held that insurance coverage would be allowed for the unintended results of an, intentional act, and the court rejected, in this regard, the tort concept of intending the natural and foreseeable consequences of one’s acts.
Talley also holds that the question of intent is an issue of fact. The appellee testified that he did not intend to injure Lee, but only wanted to cause Lee to stop his advance toward appellee. Appellee also said he could have hit Lee ten times out of ten if that had been his purpose. The trial court found that appellee did not intend to injure Lee and that injury to Lee was not expected by appellee when the shot was fired. We hold that those findings are not clearly contrary to the preponderance of the evidence.
Affirmed.
Cloninger and Corbin, JJ., agree. | [
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Lawson Cloninger, Judge.
Appellant, John Wayne Mooring, was tried and convicted of the offense of possession of a controlled substance with intent to deliver. He now brings this appeal.
His first point for reversal is that the court erred in refusing to direct a verdict in his favor. A directed verdict is only proper when there is no issue of fact for the jury to decide. In resolving the issue, an appellate court should review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Burks v. State, 255 Ark. 23, 498 S.W.2d 336 (1973). Upon reviewing the evidence in the light most favorable to the state, we find that Robert Rich, an ABC enforcement officer, entered Hal’s Liquor Store around 11:00 a.m. on July 7, 1982. He was there to make a routine inspection of the store. Upon entering, he noticed empty bottles in the trash can near the door. He observed an open bottle of whiskey sitting under the counter near the cash register. He also noticed a set of scales and a box of plastic bags. Appellant placed a cigarette machine in front of the items but Mr. Rich asked him to move it so he could look underneath the counter. He saw a brown paper sack next to the scales and bags. At that point, appellant picked up the sack and handed it to a friend, telling him to throw the sack in the trash. Mr. Rich requested to see the sack and, upon opening it, found it to contain seven plastic bags containing marijuana.
Appellant cites the case of Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) for the rule that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. In Osborne the police had gone to the appellant’s residence with a search warrant and his wife answered the door. Upon a search, the police found contraband in a dresser in one of the bedrooms and a suitcase in the hall. Marijuana was found in an ashtray in the living room. The Arkansas Supreme Court reversed a conviction for possession with intent to deliver a controlled substance, stating that the only evidence the state presented on the issue was the stipulation that appellant resided at the premises. The court noted that there were four other people at the residence when the police arrived and there was no testimony as to whose bedroom it was where the pills were found. However, it was also stated in Osborne that constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession.
In the instant case there was additional evidence to show that appellant had possession of the contraband. Appellant picked up the brown paper sack containing the marijuana and gave it to a friend and asked him to throw it away. Further, it was shown that appellant had moved a cigarette machine in front of the incriminating evidence, and it can be inferred from this action that appellant was attempting to hide the incriminating evidence. In our opinion, there was ample evidence to support the jury verdict.
Appellant’s second point for reversal is that the court erred in refusing to suppress evidence seized as a result of a warrantless search. There is a rebuttable presumption that a search without a warrant is an unreasonable search. Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977). Appellant outlines the exceptions to a warrantless search as (1) a search incident to a lawful arrest; (2) the automobile exception; (3) when consent is given; (4) the plain view doctrine. He argues that none of these exceptions is supported by the evidence in this case. However, the state counters this argument by justifying the search on the basis of a warrantless inspection. See United States v. Biswell, 406 U.S. 311 (1972). The rule in Biswell was recognized in an Arkansas case, Hosto v. Brickell, 265 Ark. 147, 577 S.W.2d 401 (1978). In Hosto, supra, the rule was stated that in a business where there is a legitimate public interest in close regulation, such as the distribution of drugs, a procedure for the issuance of a warrant prior to an administrative inspection is not constitutionally required. The court went on to say:
Where close scrutiny of traffic and commodities which are subject to close governmental supervision is of central importance for a proper governmental purpose and inspection is crucial to the regulatory scheme, if the laws are to be properly enforced and inspection made effective, unannounced inspections without a warrant must be deemed reasonable official conduct.
In Hosto, the court cited from State v Albuquerque Publishing Co., 91 N.M. 125, 571 P.2d 117 (1977), cert. denied, 435 U.S. 956 (1978). It appears that the Arkansas Supreme Court adopted the test outlined in that case for determining when a non-consensual warrantless administrative inspection of business premises can be made:
1. The enterprise sought to be inspected was engaged in a business purpose pervasively regulated by state or federal government.
2. The inspection would pose only a minimal threat to justifiable expectations of privacy.
3. The warrantless inspection was a crucial part of a regulatory scheme designed to further an urgent government interest.
4. The inspection was carefully limited to time, place and scope.
In this case, it is our opinion that these facts meet the test for a warrantless administrative inspection allowed under the rule of Hosto v. Brickell. First of all, the appellant was an employee of a business which is pervasively regulated by the state. Secondly, the inspection posed only a minimal threat to justifiable expectations of privacy. The search was only conducted on the business premises and there was no area of the business premises which was searched in which appellant had any justifiable expectation of privacy. Although it could be argued that appellant did have a justifiable expectation of privacy inside the brown paper sack, he abandoned any expectation he had when he gave this sack to a friend to be thrown away. Further, the ABC agent had reason to believe that illegal activity was taking place on the premises, since he had seen the weight scales and the clear plastic bags underneath the counter. He had also seen empty liquor bottles in the trash can. Third, the warrantless inspection was a crucial part of a regulatory scheme designed to further an urgent government interest. It is well known that ABC agents conduct routine unannounced inspections on business premises to determine if there are any illegal activities taking place on the premises. The final requirement was also met. The inspection was carefully limited as to time, place and scope.
The jury’s verdict is affirmed.
Cracraft and Mayfield, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
The appellant was convicted of carnal abuse in the first degree and sentenced to ten years and a fine of $10,000. He was charged with the crime after the eleven-year-old daughter of his live-in girlfriend reported to her grandmother that appellant had been coming to her bed and forcing her to engage in sexual contact and intercourse with him for the past three years. Only one incident, alleged to have occurred on July 16,1982, was charged.
Appellant’s first argument for reversal is that the trial court erred by allowing testimony concerning prior “bad acts” alleged to have been committed by him. He bases this argument on two instances in which the jury was allowed to hear testimony that he had committed prior sexual offenses against the young girl.
The first instance occurred when the girl’s mother testified that she had seen the defendant display his penis to the girl and order her to perform fellatio. This took place in their home approximately one month before the incident with which appellant was charged. Immediately after this testimony, the judge admonished the jury that it was not admissible to prove the character of a person in order to show that he acted in conformity therewith, but only for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The second instance complained of occurred when the prosecutrix was allowed to testify that appellant had been coming to her bed on weekends since she was eight years old, forcing her to have sexual intercourse with him and trying to force her to perform fellatio on him. Again the trial court admonished the jury.
It is appellant’s argument that the admission of this evidence was error under Rule 404(b) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Appellant cites Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970), and admits it holds that in cases similar to the one here involved the prior acts of misconduct are admissible. However, the appellant says that since the adoption of the Uniform Rules of Evidence in 1976, the law expressed in Wood has been superseded.
We do not agree. To the contrary, in Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980), this court noted that Rule 404(b) only codified the law in existence before the rule was adopted; and in Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), the Arkansas Supreme Court reviewed and affirmed our Price decision and relying upon Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), said the rule “clearly permits” evidence of other criminal activity committed by a defendant “if it has relevancy independent of a mere showing that the defendant is a bad character.” The Alford case, decided long before the Uniform Rules of Evidence were adopted, contains this language:
Superficially similar to the case at bar are those decisions holding that in trials for incest or carnal abuse the State may show other acts of intercourse between the same parties. Adams v. State, 78 Ark. 16, 92 S.W. 1123; Williams v. State, 156 Ark. 205, 246 S.W. 503. But obviously such testimony is directly relevant to the question at issue. As stated in the Williams case, such prior acts of intercourse show “the relation and intimacy of the parties, their disposition and antecedent conduct toward each other,” and for that reason the evidence aids the jury in determining whether the offense was committed on the particular occasion charged in the indictment.
Again, where the charge involves unnatural sexual acts proof of prior similar offenses has been received. Hummel v. State, 210 Ark. 471, 196 S.W.2d 594; Roach v. State, 222 Ark. 738, 262 S.W.2d 647. Such evidence shows not that the accused is a criminal but that he has “a depraved sexual instinct,” to quote Judge Parker’s phrase in Lovely v. United States, 4th Cir., 169 F.2d386.
223 Ark. at 335.
In the case at bar, we think the evidence that appellant had made a sexual overture to the little girl in her mother’s presence and that he had been sexually molesting her for three years was admissible under Rule 404(b) and the cited case law. This evidence tends to show that appellant did not crawl into the girl’s bed on the night of July 16, 1982, by mistake, accident, or because he was drunk. The prior acts were committed under circumstances similar to the July 16 act, and all of them were after appellant and the girl’s mother had been drinking and the mother had fallen asleep. All of this, plus appellant’s unnatural sexual advances, were relevant to show purpose, plan, and opportunity. To hold it admissible under Rule 404(b) is in keeping with decisions in other states. See Elliott v. State, 600 P.2d 1044 (Wyo. 1979); State v. Jerousek, 590 P.2d 1366 (Ariz. 1979). No argument is made that the prejudicial effect of the evidence outweighed its probative value, and we find no error in its admission.
Appellant’s other argument is that the court erred in admitting evidence of the victim’s truthful character. The appellant testified that she was lying. He said everything she said was a lie and that her grandmother put her up to it because the grandmother did not want the girl’s mother and the appellant to live together. Afterwards, on rebuttal, the State, over appellant’s objection, was allowed to put into evidence the testimony of the girl’s schoolteacher that the child’s general reputation for truthfulness was good. Uniform Evidence Rule 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
It might seem from a simple reading of the rule that the appellant’s testimony that the prosecuting witness was lying because her grandmother put her up to it would suffice to meet the requirement that the witness’s character for truthfulness must be attacked before evidence of good character can be introduced. This exact situation, however, may not have been decided.
The State concedes, and it seems clear, that the mere fact that a witness has been contradicted by other evidence does not constitute an attack upon the witness’s character for truthfulness. See Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). What will constitute such an attack is discussed in E. Cleary, McCormick on Evidence § 49 (2d ed. 1972), where different situations are considered. McCormick thinks even a “slashing cross-examination” may be enough, but suggests that it is unrealistic to handle the matter in any mechanical fashion. His conclusion is:
A more sensible view is the notion that the judge should consider in each case whether the particular impeachment for inconsistency and the conflict in testimony, or either of them, amounts in net effect to an attack on character for truth and should exercise his discretion accordingly to admit or exclude the character-support.
3 J. Weinstein & M. Berger, Weinstein’s Evidence par. 608[08], at 608-48 (1982), states that the mandate of Uniform Evidence Rule 401 to admit all relevant evidence “should be construed to authorize — but not to require — the admission of supportive character evidence” if the trial judge finds that the contradiction of a witness amounted to an attack on veracity. That suggestion was expressly adopted in United States v. Medical Therapy Sciences, Inc., 583 F.2d 36 (2nd Cir. 1978), where the court said, “We think that trial judges should be permitted, under Rule 608, to exercise sound discretion to permit or deny a party the use of character evidence to support veracity.”
Here, the trial judge allowed the State to introduce the supportive character evidence. The views expressed above indicate to us that we should leave the matter to the trial judge’s discretion. Furthermore, there are two cases that indicate we should not disturb that discretion under the circumstances of this case.
In Elliott v. State, 600 P.2d 1044 (Wyo. 1979), which we cited earlier, the trial court allowed the victim’s mother to testify that the victim was truthful. This was affirmed on appeal because the defendant testified that the reason the victim would accuse him was “his being the closest one there and her mother and I not getting along,” and because the defendant “indicated that the victim was selective with respect to truthfulness.” In State v. Craven, 527 P.2d 1003 (Kan. 1974), the allowance of character for truthfulness evidence was affirmed. The court said:
As the record points out, defendant repeatedly contradicted earlier statements given by the state’s witnesses, and even stated that one witness “was not telling the truth.” In the light of such evidence we cannot say the trial court abused its discretion.
It is, therefore, our view that the trial court in the instant case did not err in admitting the evidence of the victim’s truthful character. In the cases of Norrid v. State, 188 Ark. 32, 63 S.W.2d 526 (1933) and Lockett v. State, 136 Ark. 473, 207 S.W. 55 (1918), cited by appellant, there was simply no evidence sufficient to constitute an attack on the witness’s reputation for truthfulness. As we have said, in this case, we think the matter was for the exercise of the trial court’s discretion and we find no abuse in that regard.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Tom Glaze, Judge.
This appeal involves the trial court’s award of a real estate broker’s commission. The appellant, Bera Barnett, represents the estate of Vern Barnett, deceased, who had listed certain property with his son, Gene Barnett, an agent for the appellee Gary Jenkins, a real estate broker. Appellee instituted this action based on that listing contract and a subsequent offer and acceptance contract signed by Barnett, as seller, and L. G. Morris, as buyer, on August 5, 1981. The relevant events leading to and the circumstances surrounding the execution of these two documents must first be discussed before addressing the issues raised in this appeal.
Vern Barnett had owned two adjoining tracts of farm land which he conveyed separately to his son, Fred Barnett, and to Dr. Hermie Plunk — Fred received 160 acres and Dr. Plunk received 178 acres. Later, Barnett listed only the 160-acre tract for sale with his son Gene, who was an agent for appellee. However, when Barnett and appellee discussed selling the 160-acre tract, appellee said that Barnett indicated he wanted to sell both tracts. Barnett explained that he had transferred the 160 acres to Fred only to protect himself against possible judgments. He also indicated that Dr. Plunk was behind on her payments, and “he was talking to her to get her to concede to give the property back to him to sell.” After appellee’s discussion with Barnett, appellee started negotiating with L. G. Morris, a farm buyer and neighbor of Barnett’s. Apparently, Barnett and Morris agreed to the terms of the proposed sale of the two tracts on August 5, 1981. On that date, an agent for appellee prepared an offer and acceptance, which was signed by both Barnett and Morris. On August 6, 1981, Barnett contacted Dr. Plunk, and asked her to deed the 178-acre tract back to him. She refused. Barnett also failed to obtain Fred’s consent to reconvey the 160-acre tract to Barnett so that he could consummate the sale with Morris. Appellee subsequently asked Barnett to pay the $ 17,000 commission due under the offer and acceptance agreement, and Barnett refused. Appellee then filed suit for the commission, contending he had produced a buyer ready, willing and able to purchase both tracts of land. See Graham v. Crandall, 11 Ark. App. 109, 668 S.W.2d 548 (1984). Barnett raised several defenses before and at trial, but the trial court held appellee was entitled to his commission. Barnett died the day after the trial and before judgment was entered against him on December 24, 1982.
Appellant Bera Barnett raises four issues on appeal, but we only need to consider one of them. She contends that the appellee did not produce a buyer ready, willing and able to purchase the tracts involved according to the terms of their agreements. In sum, appellant argues that everyone knew the offer was conditioned upon Barnett’s reacquiring title to the two tracts. Barnett failed in his efforts to obtain such title, and appellant argues Morris simply was unable to purchase the tracts from Barnett.
While we agree with appellant’s argument in part, we believe her conclusion is best premised on the law announced in Southern Trust Co. v. Bunch, 159 Ark. 47, 251 S.W. 674 (1923). The Supreme Court in Bunch, quoting from Foltz v. Conrad Realty Co., 131 Va. 496, 511, 109 S.E. 463, 468 (1921), stated the rule as follows:
If at the time a broker makes sale of property he has knowledge of, or information of defects in the title, and by reason of these defects the sale cannot be made effective, he is not entitled to his commission.
Applying the foregoing rule to the facts at bar, appellee conceded throughout his testimony that he knew that before a sale could be made to Morris or anyone else, Barnett would have to reacquire the title to the two tracts. Appellee was aware of this title defect when he negotiated the sale to Morris, and he knew the sale could not be effected unless title to the tracts could be restored in Barnett. Because appellee had this knowledge, the trial court erred in awarding him a commission.
Reversed and dismissed.
Mayfield, C.J., and Cloninger, J., agree. | [
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Tom Glaze, Judge.
This is a custody case that involves the application of the Uniform Child Custody Jurisdiction Act (hereinafter the Uniform Act). On November 8, 1982, the trial court granted appellee, Philip Biggers, a default judgment, awarding him a divorce and the custody of the parties’ two children, ages four and seven. Later the appellant, Karen Biggers, a Missouri domiciliary, appeared specially in the divorce action, challenging the trial court’s jurisdiction and requesting it to reconsider and to vacate its default judgment. Upon the trial court’s refusal to do so, she filed this appeal wherein she contends the lower court lacked jurisdiction to make the custody award. We agree and therefore reverse.
At trial, Philip Biggers offered no testimony and for purposes of this review, the facts are essentially undisputed. The parties were married and lived in Virginia until September, 1981, when they moved to Marshville, Missouri. Philip temporarily returned to Virginia to complete school but rejoined the family in Marshville in December, 1981. The Biggers separated in January, 1982. Philip moved to Springdale, Arkansas, and Karen and the children moved to Springfield, Missouri. During the first nine months in 1982, Karen retained physical custody of the children, but Philip had them for visitation purposes in April, July and August for a total of five weeks. On August 6, 1982, and unbeknownst to Karen, Philip filed for divorce in Arkansas and requested the court to award him custody of the children. Sometime prior to September 6, 1982, Philip told Karen that he intended to move the children to live with him, but Karen, at the time, was still unaware of the pending Arkansas action. He also informed his brother, Sam Biggers, of his plans for the children, stating, “No one was going to stand in his way.” Sam encouraged Philip to go through the courts, but Philip indicated “he would not abide by any court order, that he wanted custody of the children and nothing could stop him.” Sam, who lives in Springfield, Missouri, subsequently advised Karen to stay with friends “until the issue seemed to calm down.” Apparently acting on that advice, she resided at five different homes between September 5, and October 2, 1982. On September 10, 1982, Karen filed a divorce action in Missouri; however, on October 2, before he was served in the Missouri action, Philip located Karen residing with the Willoughby family. Philip and his two younger brothers forceably entered the house, beat Mr. Willoughby, injured Karen and left with the children, taking them to Arkansas. As previously noted, Philip obtained the default divorce judgment and custody award on November 8, 1982, but Karen claimed she was unaware of such action until December, 1982.
Appellant argues (1) the Arkansas court lacked in personam j urisdiction to affect or divest her of custody of the children, and (2) appellee failed to obtain lawful service of process on appellant, thus rendering the court’s order void ab initio. Specifically, appellant maintains that under May v. Anderson, 345 U.S. 528 (1953), her right to custody of the children is personal, and a court must have in personam jurisdiction over her before terminating such a right. Because she has had no contacts with this State, appellant asserts the Arkansas court has no basis upon which it can exercise personal jurisdiction over her in this custody action. Cf. Bunker v. Bunker, 261 Ark. 851, 552 S.W.2d 641 (1977); and Pawlik v. Pawlik, 2 Ark. App. 257, 620 S.W.2d 310 (1981). She further argues the appellee failed in two respects to comply with Arkansas requirements for personal service by mail. In sum, she denies having any knowledge of the four complaints and summonses mailed her and contends she never refused service even though two envelopes were returned marked “refused.” She also contends that because appellee obtained a default judgment, he was required to have the court appoint an attorney ad litem, and his failure to do so invalidated the court’s decree. See Aldridge v. Watling Ladder Co., 275 Ark. 225, 628 S.W.2d 322 (1982).
While appellee argues against appellant’s foregoing contentions, his primary argument is that appellant has subjected herself to the Arkansas court’s jurisdiction, because even though she appeared specially before the lower court to challenge its jurisdiction, she also requested and was awarded affirmative relief — limited visitation rights with her children. As a consequence, he urges the appellant waived all objections to the court’s jurisdiction. Such an argument was advanced successfully in the case of Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978). Although the Holley decision is distinguishable, we believe it is worthy of discussion. There the appellant (former wife) instituted an action against the appellee (former husband) under the Uniform Enforcement of Foreign Judgments Act to enforce payment of child support arrearages. Although appellee demurred to the court’s jurisdiction of his person and of the subject matter, he counter-petitioned for a change in custody of the children or in the alternative, for substantial visitation rights. The Supreme Court held the appellee’s request for relief placed him in a position of waiving all his objections to the court’s jurisdiction.
Although there are similarities between the present situation and the one in Holley, one essential difference distinguishes the two. As pointed out by Justice Fogleman in Holley, the Arkansas court would have had jurisdiction and power to act in an action on a foreign judgment even in the absence of the Uniform Foreign Judgment Act. In the present situation, however, we are required to look to the Uniform Act to determine whether the Arkansas trial court had jurisdiction to decide the custody matter. See Ark. Stat. Ann. §§ 34-2701—2708 (Supp. 1983), and more particularly § 34-2703.
The Uniform Act changes prior custody jurisdiction law in that (1) it eliminates physical presence of the child as a jurisdictional basis in all but the most extreme emergency cases; (2) it establishes specific and limiting jurisdictional bases for initial decrees; and (3) it establishes even further jurisdictional limitations for the modification of existing decrees. See Uniform Child Custody Jurisdiction Act, 9 U.L.A. 116 §§ 3, 6 and 14 Commissioner’s Notes (1979). The “home state” and “significant connection” bases are the two primary means by which an Arkansas court can acquire jurisdiction under the Uniform Act.
Home state is defined in § 34-2702(5):
(5) “[H]ome state” means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old. The state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period. . . .
Home state jurisdiction is described in § 34-2703(a)(l):
(1) [T]his State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State. . . .
Finally, the significant connection basis is set forth in § 34-2703(a)(2):
(2) [I]t is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one [1] contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships. . . .
Applying the foregoing applicable provisions to the facts of this case, Missouri is clearly the home state of the parties’ children. The children lived with their mother in Missouri for more than seven months prior to the filing of appellee’s divorce action in Arkansas; and they were in Missouri nine or ten months before appellee served or attempted to serve the appellant with copies of such action. Thus, if the Arkansas court acquired jurisdiciton at all, it had to have done so because the appellee and the children had a significant connection with this State. See § 34-2703(a)(2)(i).
While the Uniform Act does not define “significant connection,” the Commissioners, in discussing this jurisdictional requirement in their Note to section 5, indicate that the interest of the child is served when the forum has optimum access to relevant evidence about the child and family, and that there must be maximum rather than minimum contact with the state. The Note further reflects that the submission of the parties to a forum, perhaps for purposes of divorce, is not sufficient (to establish that contact) without additional factors establishing closer ties with the State. See Uniform Child Custody Jurisdiction Act, supra § 5 Commissioner’s Note; cf. Jackson v. Jackson, 390 So. 2d 787 (Fla. Dist. Ct. App. 1980).
Again, from our review of the record, we find the “significant connection” basis lacking; consequently, the Arkansas court simply had no jurisdictional basis upon which to act on the child custody matter. We first point out that the trial judge never made any finding regarding either the home state or the significant connection jurisdictional prerequisites. Instead, the judge assumed jurisdiction in this cause because the children were physically present in the State. However, as we mentioned previously, the physical presence of the child is not a prerequisite under the Uniform Act for jurisdiction to determine his or her custody. See Ark. Stat. Ann. § 34-2703(c) (Supp. 1983). Aside from the fact that a child’s presence is not a jurisdictional requirement, the two children here were in Arkansas only because appellee abducted them from their residence in Missouri, their home state; and the purpose of the abduction was to afford appellee the opportunity to obtain a custody award of the children by an Arkansas court. Appellee’s actions clearly contravene one of the primary purposes of the Uniform Act — to deter abductions and other unilateral removals of children undertaken to obtain custody awards. See § 34-2701 (a)(5).
Turning to appellee’s connection with Arkansas, we find his only contacts are that he now resides and works in this State. The children’s contact with Arkansas included three visits to see their father and involved a total of five weeks over a period of nine to ten months — the time appellee had resided in Arkansas. In contrast, the parties’ last matrimonial domicile, albeit short, was Missouri. In fact, appellee selected Missouri as the family’s domicile while he returned to finish school in Virginia. As we earlier noted, the children’s home state was Missouri and that State also is where at least part of their extended family lives. Undoubtedly, the children’s maximum contacts were in Missouri at the time the Arkansas action was commenced. Because Arkansas does not meet the jurisdictional requirements under § 34-2703, the trial court did not have authority to decide the child custody issue presented it by the appellee. Accordingly, we reverse and remand this cause with directions to the trial court to enter an order finding that it has no subject matter jurisdiction over the custody issue raised by the appellee, and that its earlier judgment should be amended to reflect such finding.
Reversed and remanded.
Cooper and Corbin, JJ., agree.
By per curiam order, the Supreme Court amended Rule 4(i) of the Arkansas Rules of Civil Procedure, excising this ad litem requirement in default judgment cases. In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983).
After this cause was appealed, appellant also moved to change custody, but that request and its disposition, if any, by the trial court are not a part of this appeal.
Sections 34-2703(a)(3) and (4) set forth two other means, but they are inapplicable to the facts at bar and deal only with situations (1) when the child is present in the State and has been abandoned, abused oi otherwise neglected, and (2) when the jurisdictional prerequisites in §§ 34-2703(a)(l)(2) and (3) do not exist in another state, or another state has declined jurisdiction and it is in the child’s best interest to assume jurisdiction. | [
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John E. Jennings, Chief Judge.
Mike Slavik died testate on August 21, 1991, in Mountain Home. He was survived by five children and two stepchildren. His will left to each 16% of the assets of his estate, except for a stepdaughter who received 4%. The will named a son, Joseph Slavik, and a stepson, Edward Bishop, as co-executors.
When the proceeds of a $15,000.00 life insurance policy were not included in the inventory of the estate assets, the appellant, William Slavik, filed an objection. The probate judge held that the life insurance proceeds passed outside the will to the named beneficiaries, Joseph Slavik and Edward Bishop, and on appeal William Slavik argues that the judge’s decision was clearly erroneous. We find no error and affirm.
The policy in question was taken out in 1979, at which time the decedent designated his then wife, Mary, as the primary beneficiary. His son, Joseph Slavik, and stepson, Edward Bishop, were designated as contingent beneficiaries. Mrs. Slavik died in April, 1991, and on July 12, 1991, Mr. Slavik signed a change of beneficiary form that read:
Name Relationship Date of Birth Address Share
Joseph Slavik Co-Executors of Estate 100% and or, in the alternative,
Edward Bishop The Estate of Insured Rt. 4, Box 263 Mtn. Home, AR 72653
Appellant correctly states the generally governing rules. Provisions in insurance policies as to beneficiaries are construed in accordance with the rules applicable to the construction of wills. American Foundation Life Ins. Co. v. Wampler, 254 Ark. 983, 497 S.W.2d 656 (1973). The cardinal rule in the interpretation of wills or other testamentary documents is that the intent of the testator should be ascertained from the instrument itself and effect given to the intent. See Ware v. Green, 286 Ark. 268, 691 S.W.2d 167 (1985). The testamentary gift to an executor, designated as such, vests in him as a fiduciary and not personally, unless the intention of the testator is plainly otherwise. 95 C.J.S. Wills § 683 (1957).
Appellant argues, as evidence of the decedent’s intent, that had Mr. Slavik wanted the life insurance proceeds to go to Joseph and Edward outright, he need not have executed the change of beneficiary form, because they would have received the proceeds after the death of Mary Slavik anyway. While it is true that this would have been the effect of the 1979 designation, there is no indication that the decedent was doing more than merely “updating” his insurance policy as the result of his wife’s recent death, as opposed to making a substantive change. And while it is true that insurance policies will be generally interpreted pursuant to the rules governing the construction of wills, leaving property to a legatee as “executor” is somewhat different from inserting the word “executor” in a change of beneficiary form requiring a statement of the relationship between the policy holder and the beneficiary.
But the most serious difficulty with appellant’s argument is that the change of beneficiary designation provided that proceeds would go “in the alternative” to the estate of the insured. If possible, a will (or a change of beneficiary form) must be construed to give force and meaning to every clause and provision; it is only if there is an irreconcilable conflict between two clauses that one must give way to the other. In re Estate of Lindsay, 309 Ark. 596, 832 S.W.2d 808 (1992). Had Mr. Slavik intended that his son and stepson take the proceeds of his insurance policy only in a representative capacity, there would obviously be no need for the additional language.
Where, on a fair construction of the entire will, the inten tion of the testator is clearly manifested that the executor should take personally, he may do so. This is particularly true where the executor is a close blood relative of the testator.
95 C.J.S. Wills § 683. The only case we have found with facts somewhat similar to the case at bar is Carter v. Hochman, 269 Cal. App. 2d 28, 74 Cal. Rptr. 669 (1969). There the decedent executed a designation of beneficiary form naming Mrs. Hochman as beneficiary. Under another heading entitled, “Related to me as,” the form showed, “administrator and executrix of my will.” The appellate court affirmed the trial court’s finding that the decedent intended for the beneficiary to take the proceeds in her own right.
For the reasons stated the decision of the trial court is affirmed.
Robbins and Mayfield, JJ., dissent.
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John E. Jennings, Chief Judge.
Linda Johnson suffered an admittedly compensable injury in the form of a back strain and bruised knee when she slipped and fell at work on February 6, 1990. She was released by Dr. Randolph Taylor to return to light work on May 15, 1990, with the restriction that she not lift more than twenty-five pounds. She was laid off work on June 21, 1990, and one month later received a termination notice.
Mrs. Johnson continued to have difficulties and on May 9, 1991, Dr. Stephen Cathey diagnosed her as having “low back strain superimposed on preexisting degenerative disc disease without neurological deficit” and “morbid obesity.” In August 1991, Dr. Taylor said:
I am going to send her a letter so that she can take it by and get on a weight loss program. I think she is having relative instability in her back due to a combination of her obesity and degenerative disc disease and that she would greatly benefit from losing weight and then reconditioning.
The respondents paid temporary total disability through the time Mrs. Johnson returned to work. At a hearing before an administrative law judge on October 15, 1992, the claimant contended that she was entitled to a weight loss program to be paid for by the respondents and that she was entitled to a continuation of temporary total disability. On appeal, the full Commission approved a weight loss program but held that she was not entitled to additional temporary total disability benefits. The sole argument on appeal is “[ajppellant had not reached her healing period and was entitled to additional temporary total disability as found by the administrative law judge.” We hold that the Commission’s decision is supported by substantial evidence and affirm.
In the course of its opinion the Commission found that the claimant’s healing period had ended. The sole argument on appeal is simple and straightforward. As the appellant states: “The weight loss program is a ‘way of treatment’ that ‘will improve that condition.’ Until that happens, the healing period has not ended.” The argument is that the claimant still remains within her healing period, not that the Commission was bound to find that the healing period ended at some other time subsequent to her return to work.
If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. Arkansas Highway & Transp. Dept. v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 (1993). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. J. A. Riggs Tractor Co. v. Etzkorn, 30 Ark. App. 200, 785 S.W.2d 51 (1990). The determination of when the healing period has ended is a factual determination and is to be made by the Commission. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). When the sufficiency of the evidence to support the Commission’s findings of fact is challenged, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Thurman v. Clark Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). We must uphold those findings unless there is no substantial evidence to support them. Thurman, supra.
In May 1991, Dr. Cathey stated, “Since the injury occurred well over a year ago, I believe the patient has reached maximum medical benefit and could be released to return to work whenever she feels she could handle herself there.” In September 1991, both Dr. Taylor and Dr. Carl Goodman expressed the opinion that the claimant had reached “maximum medical improvement.” In the case at bar we hold that the Commission’s finding, that the claimant is not still within her healing period, is supported by the evidence.
There is another reason that the decision of the Commission must be affirmed. In Arkansas State Highway Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981), the supreme court made it clear that the mere fact that the claimant remains within the healing period does not mean that he or she is entitled to temporary total disability. “Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages.” Breshears, 272 Ark. at 246. Temporary total disability is not based on the claimant’s healing period, but is instead awarded where the claimant is incapacitated because of injury to earn the wages she was receiving at the time of the injury.
In the case at bar the Commission expressly found that Mrs. Johnson was not entitled to additional temporary total disability after May 15, 1990. The Commission based this finding on the fact that the claimant had returned to work, her testimony that she would probably still be working for the appellee had she not been laid off, the fact that she subsequently worked part-time for a photographer, and her testimony that she helped her husband at his service station and was physically capable of doing so.
We cannot say that fair-minded persons could not reach the conclusion that Mrs. Johnson did not suffer “a total incapacity to earn wages” beyond May 15, 1990. See Breshears, supra.
For the reasons stated the decision of the Commission is affirmed.
Affirmed.
Mayfield, Cooper and Robbins, JJ., dissent. | [
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Melvin Mayfield, Judge.
Appellant David Wilson was tried by the court without a jury and convicted of DWI, second offense. He was sentenced to seven days in jail; a fine of $400.00 plus costs; his driver’s license was suspended for one year; and he was ordered to attend DWI school.
At trial, Billy Jones testified that on October 27, 1990, he was in bed about 3:30 or 4:00 a.m. when he heard a crash in front of his house. He got up, went to investigate, and saw appellant alone crossing the road from the direction of a car.
Mary Jones testified that she was awakened that night by a crash. She said she got out of bed, looked out the window, and saw tail lights on a car that had gone across the ditch into a field in front of her house. Mrs. Jones testified that they let the driver come into their house to make a telephone call. Later a car came, stopped by the vehicle in the field, blew the horn, and then turned around and went toward Brinkley. A few minutes later, another vehicle came along and stopped. Mrs. Jones said that she then heard a bump and a bang. She looked out; saw some people trying to kick the windows out of the vehicle in the field; and she called the Sheriff’s Office. Mrs. Jones testified that the boy who was driving the car that went into the field was not there when she called the sheriff and this could not have been more than 30 minutes after the boy had made his telephone call.
Tim Wheeler, who was a deputy sheriff on October 27, 1990, testified he was sent to the accident scene and arrived there about 3:30 a.m. While he was trying to figure out who the vehicle belonged to, appellant pulled up with some people and said it was his car and that he had been driving. Officer Wheeler testified that he smelled the odor of intoxicants about appellant; that he took him to the McCrory Police Department where a breath test was administered at 4:28 a.m.; and that the test showed a blood alcohol content of 0.11 percent.
The appellant testified he did not tell the officer that he was driving, but only that the vehicle belonged to him. He said that the accident happened about 12:00 or 12:30 a.m., and he was not intoxicated at the time of the accident.
On appeal, the appellant argues the evidence was insufficient to support his conviction for DWI. Appellant contends the State failed to prove he was intoxicated at the time he was driving, or in actual control of his vehicle, and that even though he failed a breath test at 4:28 a.m., there is no evidence that he drank anything until after the accident occurred.
In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra. The fact that evidence is circumstantial does not render it insubstantial. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982).
Here, Billy Jones testified that he was awakened about 3:30 a.m. by a crash in front of his house; that he saw appellant coming from the car; and that appellant was alone. Mary Jones testified that appellant used their telephone and left and that, within the next 30 minutes, she called the sheriff because some boys were trying to break into the car. Officer Wheeler testified that he was sent to the scene at around 3:30 a.m.; that he could smell the odor of intoxicants about the appellant; and that appellant said the car was his and he had been driving it.
Although appellant testified he was not intoxicated at the time the accident happened; that the accident occurred at approximately 12:00 or 12:30 a.m.; and that he drank four or five beers between the time of the accident and 4:20 a.m., the trier of fact is not required to believe the testimony of a criminal defendant, who is probably the person most interested in the outcome of the proceeding. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985).
Viewing the evidence in the light most favorable to the state we think there is substantial evidence from which the trial court could find appellant guilty of driving while intoxicated.
Appellant also argues that the trial court erred in finding him guilty of DWI, second offense, because there was no evidence that the prior offense had occurred within three years of the present offense. Appellant contends that the date of his prior offense was not on the docket sheet introduced into evidence, but the trial court assumed the date of the offense was in 1988 because the docket sheet contained a 1988 docket number.
When the State utilizes a prior conviction to convict a defendant of a second or subsequent DWI offense, the State must show that the offense which resulted in the prior conviction occurred within three years of the date of the second offense. Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987). An offense occurs when the criminal act is committed. Rogers, supra.
Here, the accident giving rise to this case occurred on October 27, 1990. Therefore, to convict appellant of DWI, second offense, the previous offense must have occurred after October 27, 1987. The trial court admitted into evidence a copy of a docket sheet of the Municipal Court of Craighead County. That sheet states that the ticket number is 88-043360; that the docket number is 88-103; and that a plea of guilty was received on 2-22-88. On this copy the date of the charge is stated as “1/11/8” and the date of first setting is stated as “1/15/8” because, apparently, the docket sheet was improperly copied and did not show the last number of the year.
The State argues that because the docket sheet con tains a notation that the ticket number was 88-043360, and because other dates on the docket indicate that some aspects of the case occurred in 1988, the trial court could have found that appellant’s prior offense occurred in 1988. But the due process clause of the fourteenth amendment to the United States Constitution requires the prosecution to prove beyond a reasonable doubt every element of the crime of which the defendant is charged. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980). Here, we do not believe that there is sufficient evidence of the date of appellant’s first offense. Even if we assume that appellant’s ticket was written in 1988 and that he was charged in 1988, we cannot know how soon after the offense the ticket was written or the appellant was charged. Thus, the date of appellant’s first offense, which is an essential element of DWI, second offense, cannot be established beyond a reasonable doubt; therefore, it was error to find appellant guilty of DWI, second offense.
Because the State only proved, by sufficient evidence, that appellant was guilty of DWI, first offense, double jeopardy considerations, cf Rogers, supra, require that we reverse and remand this case to the trial court to resentence the appellant for that offense.
Affirmed in part; reversed and remanded in part.
Jennings, C.J., and Robbins, J., agree. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case filed a claim for benefits alleging that she sustained chemical burns to her arms on September 4, 1990, during the course of her employment at Modern Industrial Laundry. The Commission concluded that her claim was one for an occupational disease which required her to prove a causal connection by clear and convincing evidence; employing this standard, the Commission found that the appellant failed to prove entitlement to benefits. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in concluding that her claim was one for an occupational disease requiring her to prove a causal connection by clear and convincing evidence. We agree, and we reverse and remand.
The record shows that, on the day of her injury, the appellant was employed at Modern Industrial Laundry removing sheets from a buggy, and helping another person pull the sheets taut so they could travel through a mangle iron. The appellant claimed that she noticed her arm turning red while pulling wet sheets out of a basket that day and sought medical treatment, subsequently undergoing grafts for burns to her forearm. In short, all the evidence in this case points to a single injurious exposure resulting in the injuries claimed by the appellant in the case at bar; although there was some evidence that the appellant sustained similar injuries while working for a different employer, the evidence in this case showed that those prior injuries were, for all practical purposes, healed by the time she sustained the injuries on which the case at bar is based.
Arkansas Code Annotated § 1 l-9-601(e)(l) (1987) defines “occupational disease” as any disease resulting in death or disability that arises out of or in the course of the occupation, or naturally follows from an injury. Although our Act does not define the distinction between “accidental injury” and “disease,” one widely accepted and salient distinction is that occupational diseases are generally gradual rather than sudden in onset. See, e.g., IB Arthur Larson, Workmens’ Compensation Law § 41.31 (1992). Given that the evidence shows that the appellant’s traumatic injury resulted from a single injurious exposure and was sudden in its onset, we hold that the Commission erred in characterizing it as an occupational disease rather than an injury.
The appellant also argues that the Commission erred in allowing a witness, Imogene Beavers, to testify by deposition. We do not address this question because the appellant has failed to include the challenged deposition in the record before us, and we are therefore unable to determine whether reversible error occurred. See Death and Permanent Total Disability Trust Fund v. Whirlpool Corp., 39 Ark. App. 62, 837 S.W.2d 293 (1992).
Because of our resolution of the appellant’s first point for reversal, we need not address the remainder of her arguments.
Reversed and remanded.
Jennings, C.J., and Robbins, J., agree. | [
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Jim Johnson, Associate Justice.
This suit is for personal injuries resulting from a collision. between an automobile and a truck. On December 11, 1959, appellee William F. Humphreys was one of two passengers in a car driven by Jimmy Clemons en route from Hampton to Calion. Clemons ’ car collided with the side of a tractor-trailer driven by appellant Augusta Reed, an employee of appellant C. F. Wright. Clemons was killed and the two passengers injured. Appellee filed suit against appellants in Calhoun Circuit Court. Judgment was given on a jury verdict of $4,000.00 for appellee, from which appellee appealed, Humphreys v. Reed, 234 Ark. 861, 355 S. W. 2d 281, and on March 19, 1962, this court reversed and remanded the cause for a new trial.
On October 31, 1962, after a new trial, the jury returned a verdict for appellee for $30,000.00. In this case appellants have appealed from the judgment on the verdict.
The first point urged for reversal is that the trial court erred in excluding opinion testimony of the Arkansas State Police officer who investigated the collision During direct examination, after testifying at length about the physical facts he found at the scene of the collision, the officer was asked, “From the physical facts that you found in your investigation, did you form an opinion as to the point of impact?” Appellee objected, and court sustained the objection, excluding this opinion testimony.
We have had occasion to review admissibility of opinion testimony several times recently. Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137; Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436; Waters v. Coleman, 235 Ark. 559, 361 S. W. 2d 268. In each of these cases this court applied the rule contained in Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942, that, “The subject-matter of these questions did not call for the opinion of experts. The facts of the occurrence were not beyond the knowledge and experience of any ordinary man to understand and draw conclusions from them, when detailed by eye-witnesses. Therefore the expert testimony was not competent, and the court did not err in so holding.”
The collision here in question was uncomplicated and there were photographs of the automobile, truck, and the scene of the accident, showing gouges and marks on and off the road, as well as testimony of witnesses who vividly described the conditions prevailing and the scene. The police officer’s testimony conflicts in part with testimony of some of appellee’s witnesses who arrived at the scene before the officer; however, virtually the only fact testified to by the officer not already clearly covered by testimony of witnesses for both appellee and appellants was the location of debris on the highway, which the officer testified about, in detail and at length. As was stated in the Waters case, supra, “The facts to be determined were not complicated. This was a relatively simple collision. Certainly there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw its own conclusions. The state of the record being thus, we find that the trial court erred in allowing appellee to resort to such expert opinion.”
It follows, therefore, in the present case, that the trial court committed no error in excluding the police officer’s opinion testimony. In so holding, we take this occasion to restate the rule so succinctly stated in Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595, “Opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way. ’ ’
Appellants next urge that the trial court erred in refusing to give their Instruction No. 14, which reads as follows:
“The defendants have pleaded that the plaintiff and the driver of the car in which he was riding were engaged in a joint enterprise and because thereof, negligence of the driver, if any, is imputable to the plaintiff, that is, that the negligence of the driver, if any,, would have the same effect as negligence of the plaintiff.
“If the plaintiff and the said Clemons, the driver of the automobile, were, at the time of the collision, using the automobile for a common purpose, that is, a mutual purpose, and if each had equal right over the management and operation of the automobile and equal right to govern and direct the movements and conduct of each other with respect to the purpose for which the automobile was being used, then the plaintiff would be responsible for negligence of the driver, if any, and such negligence would, in effect, be the negligence of the plaintiff. ’ ’
Appellants, in their answer, pleaded that appellee and Clemons, the driver, were engaged in a joint enterprise. In a recent case, Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744, this court discussed joint enterprise, or joint venture, as follows:
“Prosser on Torts (2d Ed.), § 65, discussing the law of joint enterprises, states that:
“ ‘The prevailing view is that a joint enterprise requires something beyond the mere association of the parties for a common end, to show a mutual ‘right of control’ over the operation of the vehicle—or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extend as- the driver. In the absence of circumstances indicating such an understanding, it has been held that . . . fellow servants in the course of their employment, although they may have a common purpose in the ride, are not engaged in a joint enterprise. ’
“Many cases have denied the existence of' a joint enterprise where nothing was shown except that two fellow employees had been riding together upon a common mission in the course of their employment. [Cases cited.]
“In the case at hand the testimony does tend to establish the first requirement, a common purpose. But they do not show that Yount agreed that Woodard was entitled to an equal voice in the control of the car or that, if the two had been riding in Woodard’s automobile, Yount would have had an equal voice in its control. (The latter situation is important, because any control that Woodard might have exercised as a superior employee would not satisfy the requirement of equality of control.)' Joint control and joint responsibility should go hand in hand; neither should exist without the other. If the passenger shares the responsibility for the physical control of the vehicle then it is proper for him to share the liability for the driver’s negligence. But if the responsibility of control is not shared then the liability ought hot to be shared. In the case at bar the trial court’s error lies in permitting the jury to infer the existence of the second requirement from proof of the first, which in effect. amounted to doing away with the second requirement altogether.”
The testimony here relative to the three men traveling together is contained in the direct examination of Randall Kitchens, the other passenger, and appellant. Kitchens testified as follows:
‘‘Q. Do you know the plaintiff in this case, William F. Humphreys?
A. Yes, sir.
Q. Did you know Jimmy Clemons during his lifetime?
A. Yes, sir.
Q. On or about December 11, 1959, were you working with them at the Calion Lumber Company in Calion, Arkansas ?
A. Yes, sir.
Q. On that morning did you see both of those boys? A. Yes, sir.
Q. Where did you meet them?
A. At the Texaco station.
Q. Right down a block here from the courthouse? A. Yes, sir.
Q. What time of the morning did you all get together?
A. About six-fifteen.
Q. Where w.ere you going that morning?
A. To work at Calion.
Q. Were all of you -working for Calion Lumber Company?
A. Yes, sir.
Q. What time did you have to be at work?
A. At seven o’clock.
Q. Whose car were you going down there in?
A. In Jimmy Clemons’ car.
Q. And he picked you up at the Texaco station?
A. Yes, sir.”
Appellee testified as follows:
‘ ‘ Q. Oil that morning did you meet Jimmy Clemons and Randall Kitchens, who just testified, to go to the job at Calion?
A. Yes, sir.
Q. Where did you meet them?
A. At the Texaco station on the corner, at the red light,
Q. You all got in Jimmy Clemons’ car and went on down toward Calion?
A. Yes, sir.”
Appellants forcefully contend that the trial court erred in refusing to give the above quoted instruction which they urge presented appellants’ theory of the case. In support of this contention appellants quote from Western Coal & Mining Co. v. Moore, 96 Ark. 206, 131 S. W. 960, as follows:
“It is error to refuse a specific instruction clearly applying the law to the facts of the case ... It was the theory of the defendant that the accident was caused by a lump of coal which projected over the side of the car, which struck the prop and knocked it out, thereby causing the rock to fall. Evidence was adduced by it at the trial to sustain this contention, and defendant had a right to have this theory of the case presented to the jury in concrete form.” [Emphasis ours.]
As brought out in the Woodard case, supra, joint enterprise requires both (1) common purpose, and (2) equality of control. In the case át bar, review of the testimony clearly reflects common purpose, but there is a total failure of evidence on the matter of equality of control. Failing thus to produce evidence essential to the establishment of joint enterprise, appellants were not entitled to the instruction offered. Accordingly, the trial court was correct in refusing to give such an instruction. Instructions are to be given on the evidence, not on the pleadings.
We have examined very carefully the other instructions, offered or given, complained of by appellants and find no error.
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Paul Ward, Associate Justice.
This appeal, involving the probation of a will, presents a unique legal question in this state. The pertinent facts are not in dispute.
■ On September 8, 1910 Ruth Harris, eighteen years of age and unmarried, executed her will leaving the bulk of her property (real and personal) to her mother. Soon thereafter she became mentally incompetent and remained in that condition the rest of her life. Upon the death of Ruth in 1960 her will was admitted to probate over the objections of appellants who would have inherited part of the property had there been no valid will.. Appellees are the heirs of Ruth’s mother and, if the will is sustained, will get the property, amounting to some $20,000 in realty and some $40,000 in personalty.
The ground on which appellants objected to probation of the will and on which they seek a reversal is set out below.
In 1910 (when the will was executed) a woman who was under 21 years of age had no power to execute a will conveying real property. The applicable statute on that date was Ark. Stat. Ann. % 60-102 (1947)—enacted in 1835. About eleven years before Ruth Harris died the law was changed by statute to provide that “any person of sound mind eighteen years of age or older may make a will”. This statute was passed in 1949 and is now Ark. Stat. Ann. § 60-401 (Supp. 1961). It appears to be conceded by the parties (and we so hold) that if the 1835 statute governs the validity of the will this case must be reversed, but that it must be affirmed, if the 1949 statute governs.
It seems to be the contention of appellants that the statute in effect when a will is executed always governs its validity. To sustain their position appellants point out that § 60-401 (a section of Act 140 of 1949) was held not to be retroactive in the case of Adams v. Hart, 228 Ark. 687, 309 S. W. 2d 719. That opinion, where this Court-was concerned with jurisdiction of heirship, said that Act 140 is not retroactive. On the other hand appellees appear to contend that, in determining the validity of a will, the applicable statute in force when the testator dies is always controlling. In support of their position appellees quote from Wilson v. Greer, 50 Okla. 387, 151 Pac. 629, 129 ALR 864:
“A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time it takes effect, which is at the time of the testator’s' death.” They also quote from Wakefield, Ex’r. v. Phelps, Appt., 129 ALR 864, 37 N. H. 295, this statement:
“A will does not take effect, nor are there any rights acquired under it, until the death of the testator; and its construction and validity depend upon the law as it then stands.”
They also quote to the same effect statements found in 57 Am. Jur. Wills § 61 and 68 C. J. Wills § 252.
After careful consideration of the scant authority we have been able to find bearing on the issue here presented, we have reached the conclusion that the governing statute (the one in force when the will is executed or the one in force when the testator dies) depends upon the factual situation of each particular ease.
In reaching the above conclusion we approve the reasoning used and the result reached in the case of Hoffman v. Hoffman, et al., 26 Ala. 535 (1855). The basic facts in the cited case were: Jacob Hoffman executed his will in 1848 with two attesting witnesses when the law in effect at that time required three witnesses. Before Hoffman died the law had been changed to require only two witnesses. The Supreme Court, in holding the will valid under the law in effect at the date of death of the testator, made the following statements:
“The Legislature unquestionably have the power to prescribe rules for the execution of wills, before a right has been vested in the devisee, legatee, or heir, by the death of the testator; and it was, therefore, entirely competent for them to fix the number of witnesses which were essential to the validity of any will, whether made before or after the passage of the statute; and in this aspect, the question is one of statutory construction simply.
*
“If the statute had increased the number, and thus superadded a condition, we should then say, as the Court of King’s Bench said in relation to the statute of Car. II, that it applied only to wills made after its passage but when its object is, not to abridge, bnt to enlarge the-privileges of the testator, and to give effect to his will,, then it falls within the principle by which devises, made-in words which, by Legislative construction alone, include lands subsequently acquired, are extended to wills; made before the law took effect. ’ ’
In line with the above, the rule is well stated in 57 Am. Jur. Wills § 230:
“Since no rights in property disposed of by will vest in others prior to the death of the testator, changes in the statutory requirements in respect of the method of the execution of a will may be made applicable to the will, previously executed, of a testator living when the amendatory statute became effective, without violating constitutional provisions protecting vested rights. ’ ’
We are in complete agreement with the statement contained in the first quotation from the Hoffman case above and when applied to the facts in the case under consideration we find it unnecessary to hold (as suggested by appellants) that § 60-401 operates retrospectively to amend § 60-102. Eather, we are merely applying § 60-401 to a situation that arose only when Euth Harris died—i.e. after said, section was enacted. The above situation is one where it is proper to apply the statute in force when the testator dies.
The last quotation from the Hoffman case above refers to a situation where it would be proper to apply the statute in force when the will was executed. If a will is executed in compliance with all requirements of the statute then in effect it obviously would be unreasonable and against the public interest for such will to be invalidated by a subsequent statute. In no event should such result be sanctioned unless the subsequent statute specifically provides that all preexisting wills (made in accordance with the former statute) are void. Any other conclusion would make the validity of all existing wills subject to the whim of every convening legislature.
In conformity with what we have previously said, we conclude that Ruth Harris’ will was valid under the provisions of said % 60-401, and that the trial court correctly admitted said will to probate.
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Jim Johnson, Associate Justice.
This appeal involves the respective riparian rights of appellant L. W. Scott, the upper proprietor, and appellee H. H. Slaughter, the lower proprietor, in the waters of Roc Roe Bayou.
Appellant is the owner of approximately 1,440 acres of land lying immediately north of a tract of approximately 960 acres of land owned by appellee in Prairie and Monroe Counties.
Roc Roe Bayou heads at Roc Roe Lake near the north boundary of appellant’s land and courses in a southerly direction through the lands of both appellant and appellee. Except for its own fairly insignificant watershed, Roc Roe Bayou is fed by the waters of White River which fills Roc Roe Lake and from there enters Roe Roe Bayou. In addition to the White River waters, Roc Roe Bayou is fed by a tributary, Honey Creek, which enters Roc Roe Bayou from the northwest at a point on appellant’s land about a mile from the bayou’s head and about one-half mile north and upstream from appellee’s north property line. The bayou then meanders southerly some twenty miles to a point near the community of Roe, Arkansas, where it empties back into White River.
Without obstruction the waters of White River running through Roc Roe Lake would enter Roc Roe Bayou when the river reached a stage of 17 feet on the Clarendon gauge. Honey Creek has a rather large watershed of some 18,500 acres. The waters from this creek empty into Roc Roe Bayou.
Appellant has constructed three dams on the portion of Roc Roe Bayou which traverses his land. We here refer to them as the north, middle and south dams. The middle dam was constructed across the bayou at a point about 100 feet north of and upstream from the confluence of Honey Creek with Roc Roe Bayou. This dam was constructed with a spillway which permitted all river water above a stage of 19 feet on the Clarendon gauge to pass over the dam except the comparatively slight amount of water necessary to raise the level of the water behind the dam to the river level. The north dam is a low water dam and was constructed at the entrance of the White River waters into Roc Roe Bayou at the point where Roc Roe Bayou connects to Roc Roe Lake. This dam is also constructed to a height which permits the river waters to flow over it when a stage of 19 feet is reached on the Clarendon gauge. Its purpose is to trap and impound the river water between the north dam and the middle dam so as to prevent the northward drainage of the impounded waters when the water level of White River, and in turn Roc Roe Lake, is below 19 feet.
The south dam is several feet lower than the middle dam and was constructed across the bayou at a point on appellant’s land about one-half mile south and downstream from the confluence of Honey Creek and about 150 feet from the north boundary line of appellee’s lands.
Roc Roe Bayou as well as Honey Creek are somewhat intermittent streams and run dry during periods of little rainfall.
Both appellant and appellee operate commercial hunting and fishing facilities on their respective prem ises. Appellee does not now impound water on luis premises. This action was brought by appellee contending that appellant’s impoundments constitute an unreasonable use of the water, depriving him of waters which otherwise would have flowed through his lands, and prayed that a mandatory injunction issue requiring removal of the dams and that he be given judgment for damages.
Trial upon the merits resulted in a finding for appellee. This decree was vague as to specific relief but was clear as to the principal points in controversy. The court found that appellant’s use of the water was unreasonable and directed the removal or lowering of the dams. All claims for damages were denied. From such decree comes this appeal. Appellee does not cross appeal from that part of the decree denying damages.
For reversal appellant urges that the trial court erred in holding that appellant’s use of the water was unreasonable.
Prior to the decision of this court in Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129, there was considerable confusion as to the law in this jurisdiction relative to the right to use water. In that case the court determined that the Reasonable TJse Theory should control. This theory was explained as follows:
“This theory appears to be based on the necessity and desirability of deriving greater benefits from the use of our abundant supply of water. It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level -when the water can be beneficially used without causing unreasonable damage to other riparian owners. The progress of civilization, particularly in regard to manufacturing, irrigation, and recreation, has forced the realization that a strict adherence to the uninterrupted flow doctrine placed an unwarranted limitation on the use of water, and consequently the courts developed what we now call the reasonable use theory. This theory is of course subject to different interpretations and limitations. In 56 Am. Jur., page 728, it is stated that “The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore. In general, the special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon, qualified only by the correlative rights of other riparian owners, and by certain rights of the public, and they are to be so exercised as not to injure others in the enjoyment of their rights.’ It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use (U. S. v. Willow River Power Co., 324 U. S. 499, 65 S. C. 761, 89 L. Ed. 1101). The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. (Meng v. Coffey, 67 Neb. 500, 93 N. W. 713, 108 Am. St. Rep. 697).”
While this court unhesitating^ embraced the reasonable use theory in the Harris case, supra, it took occasion to caution “that we are not necessarily adopting all the interpretations given it [the reasonable use theory] by the decisions of other states, and that our own interpretation will be developed in the future as occasions arise.” However, the following general rules and principles were declared to be the law in this state:
“(a) The right to use water for strictly domestic purposes—such as for household use—is superior to many other uses of water—such as for fishing, recreation and irrigation.
“(b) Other than the use mentioned above, all other lawful uses of water are equal.
“Some of the lawful uses of water recognized by this state are: fishing, swimming, recreation, and irrigation.
“(c) When one lawful use of water is destroyed by another lawful use the latter must yield, or it may be enjoined.
“ (d) When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each. ’ ’
From a careful review of the voluminous record presented in the present not uncomplicated case we have determined that an equitable application here of the rules set out above demands that appellant’s north and middle dams be lowered to a level which will permit the waters from White River and/or Roc Roe Lake, after filling the reservoir created by the dams, to pass over such dams or spillways when the Clarendon gauge shows a stage in excess of 17 feet. As to the south dam, it is virtually undisputed that it only requires a trace of rain to fill the reservoir behind this dam and that once full all water falling in the Honey Creek watershed passes over the spillway and through appellee’s land—add to this the increased flow which will result from lowering the north and middle dams—the conclusion cannot be escaped that the south dam need not be lowered.
To the extent here stated, it follows that the trial court’s decree is modified and affirmed. Accordingly the cause will be remanded for the entry of orders consistent with this opinion.
McFaddin, J., not participating. | [
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G-eorge Bose Smith, J.
The appellant William B. Kennedy and the appellee Yada Kennedy Couillarcl were divorced in 1955. They had owned a 41.80-acre tract of land as tenants by the entirety. During the negotiations in the divorce case the couple purportedly executed a warranty deed conveying the land to Kennedy’s parents, who later reconveyecl it to him. This is a suit by Mrs. Couillard to cancel both conveyances, on the ground that her signature upon the first deed was a forgery. The only question we need consider is whether the chancellor was right in holding that the deed was in fact forged.
There were two hearings in the court below. At the first one Mrs. Couillard denied having signed the deed in question. Dr. Orlando Stephenson, testifying as a handwriting expert, explained his reasons for thinking the deed to be a forgery. Mrs. Couillard’s testimony was contradicted by Kennedy and his mother, who both said that they saw Mrs. Couillard sign the deed. After the hearing the chancellor gave a written opinion in which he discounted the conflicting testimony of the interested parties and concluded that he should accept the disinterested opinion of Dr. Stephenson, which was then the only expert testimony in the record.
Before a decree was entered the case was reopened for a second hearing. The notary who took the acknowledgments, appearing as a witness for Kennedy, identified her own signature as genuine, but she was unable to remember after seven years whether Mrs. Couillard had signed the deed in her presence. Kennedy also introduced the testimony of another handwriting expert, Earl Davenport, who was of the opinion that the questioned signature was genuine. After the second hearing the chancellor announced that the additional testimony had not affected his earlier conclusions. We think the court was in error, for the supplemental proof destroyed ■whatever value Dr. Stephenson’s opinion may have had and tipped the scales decidedly in favor of the appellants.
Dr. Stephenson’s testimony, standing alone, was undeniably convincing. He based his opinion solely upon a comparison of the disputed signature with 19 specimen signatures that the former Mrs. Kennedy (now Mrs. Couillard) had written upon a single sheet of paper. The witness pointed out that in the challenged signature there was a break in the name Yada, where the pen had been lifted from the paper, but there was no such break in any of the 19 specimens. Moreover, in all of the 19 specimens there was an upward flourish of the pen at the end of each name (Yada and Kennedy), but there was no similar flourish in those names as they appeared in the deed. Upon this reasoning Dr. Stephenson concluded that the signature in dispute was a forgery.
Now it happened that on May 17, 1955, the day on which the deed in controversy was apparently executed, Yada Kennedy signed three other documents: A waiver of service, an agreement to take depositions, and an application for the purchase of traveler’s checks. These three signatures are contemporary and admittedly genuine. Davenport, the appellants’ handwriting expert, demonstrated with much force the great similarity between the three authentic signatures and the one upon the questioned deed. Among other things, all four contain the break in the name Vada that is absent in the 19 specimens. Again, all four lack the flourishes that characterize every one of the 19 specimens. In fact, Davenport pointed out certain inconsistencies in the various flourishes that led him to believe that they did not represent the writer’s normal penmanship and had been deliberately inserted in the 19 specimens prepared for eomparison purposes.
It has frequently been held, for obvious reasons, that specimen signatures written solely for use at the trial are not an admissible basis for comparison. Jones on Evidence (2d Ed.), § 1294. But even if these 19 specimens should be considered admissible they have no persuasive force. Their dissimilarity to the three genuine signatures of May 17, 1955, is too marked to be overlooked. Yet Dr. Stephenson’s conclusions were based upon no other comparison. If he is right in saying that the signature upon the deed under attack is a forgery, then we should have to conclude upon exactly the same reasoning that the three authentic contemporary signatures were also forgeries.
Dr. Stephenson’s testimony is now shown to prove nothing except the fact that the 19 specimen signatures contain characteristics that distinguish them from the signature in issue. With his testimony eliminated the appellee is left, with only her denial of having signed the deed—a denial that is somewhat weakened by the fact that she apparently thought it best to disguise her true signature before submitting it for comparison. The appellee’s testimony is contradicted by her former hus band, by the latter’s mother, by the expert Davenport, and to some extent by the notary public. We are compelled to conclude that the appellee did not sustain the burden of proving her case by a preponderance of the evidence.
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George Rose Smith, J.,
on rehearing. One assignment in the appellant’s motion for a new trial was that “the jury was misinstructed by the court over defendant’s objections.” In our original opinion we held this assignment to he too general in its language to support a contention that a particular instruction was erroneous.
In a petition for rehearing counsel point out that there was only one objection to the instructions, that being a specific objection to Instruction No. 8. Hence, it is argued, the assignment of error—-that the jury was misinstructed over the defendant’s objection—could only have referred to Instruction No. 8, for no other part of the charge was given over the defendant’s objections. We think this reasoning to be sound, and we accordingly consider the point upon its merits.
Instruction No. 8 was directed to the State’s proof that the accused had passed other forged checks. The instruction told the jury that this proof would not justify a finding of guilty upon the two offenses that were being tried, but the proof might nevertheless be considered with .respect to the matter of guilty knowledge or the existence of a common plan. In objecting to the instruction counsel specifically asked the court to tell the jury not to consider the other offenses in fixing any punishment that might be imposed. This request Avas denied.
We think the request should have been granted. Under our habitual criminal statute prior convictions may be a basis for increasing the punishment for the offense on trial, Ark. Stat. Ann. § 43-2328 (Supp. 1961), but in the absence of a conviction the jury ought not to consider some other offense as a reason for increased punishment. As we said in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804: “If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established Avith the required certainty.” See also Ingram v. State, 39 Ala. 247.
There should be no doubt in the minds of the jurors about the purposes for Avhich they may properly consider the proof of other offenses. “When proof of other crimes is admitted, the court must instruct the jury as to the limited purpose of its admission, and that they must confine its lose to that purpose. The failure to so instruct the jury is reversible error if prejudicial.” Wharton’s Criminal Evidence (12th Ed.), § 248 (italics added). This is essentially the position we took in Norris v. State, 170 Ark. 484, 280 S. W. 398, for there the instruction that Avas approved not only explained the purpose of the proof of other offenses but Avent on to tell the jury that “yom should consider such evidence for this purpose and for this purpose alone.”
Original opinion delivered October 7, 1963, p. 5.
In the present case the court stopped short after telling the jury that the proof of other offenses would not justify a verdict of guilty but might be considered upon the issue of guilty knowledge and common plan. Thus the instruction told the jury not to consider the evidence for one purpose, allowed the jury to consider it for another purpose, and said nothing' one way or the other with respect to a third purpose—the assessment of punishment. .In this situation the jurors might very well have supposed that it was proper for them to take the other offenses into account in fixing the sentence; certainly there was nothing to prevent them from taking that view.
An error is presumed to be prejudicial unless the contrary affirmatively appears. Crosby v. State, 154 Ark. 20, 241 S. W. 380. In view of the fact that here the jury imposed the maximum sentence of twenty years imprisonment for the forgery and uttering of a check for $87.63, for which restitution appears to have been made, we certainly cannot say that it affirmatively appears that the prior offenses were not taken into account in the assessment of the punishment.
When an erroneous ruling has nothing to do with the issue of guilt or innocence and relates only to the punishment, it may be corrected by reducing the sentence to the minimum provided by law. Webb v. State, 154 Ark. 67, 242 S. W. 380. Hence, unless the Attorney General files a request within seventeen days for the cause to be remanded for a new trial, the sentence upon each count will be reduced to the minimum of two years, Ark. Stat. Ann. § 41-1805 (1947), to be served consecutively, and as so modified the judgment will be affirmed.
The petition for rehearing is granted.
Harris, C. J., would deny the petition. | [
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Jim Johnson, Associate Justice.
This appeal arises from a re-trial of eminent domain proceedings for highway purposes. On June 15, 1960, appellant Arkansas State Highway Commission filed a complaint and declaration of taking in Saline Circuit Court, condemning 18.03 acres of land belonging to appellees Marshall and Dorothy Stanley, along the right-of-way of Interstate Highway 30. Appellant Highway Commission deposited $5,000.00 in the registry of the court as estimated just compensation for the property, which was later withdrawn by appellees. Appellees filed an answer praying-judgment for the sum of $14,803,703.80. At trial, the jury returned a verdict of $150,000.00, which was reversed on appeal on grounds that “the verdict was not supported by substantial competent evidence,” and remanded for a new trial.
The cause was again tided before a jury on February 21, 1963, and the jury returned a verdict for $35,000.00. From the judgment on the verdict, the Highway Commission has prosecuted this appeal, contending that the trial court erred in refusing to exclude the value opinions of two of appellees’ witnesses. Appellees have cross-appealed, urging that the trial court erred in refusing to grant appellees’ request for a drawn and struck jury of 24 qualified jurors from which eighteen shall be drawn and struck. We shall consider this point first.
At the second trial, when the parties announced ready for trial, when appellees requested a drawn and struck jury the following discourse ensued:
Mr. McCray: “The claimant, Stanley, requests a drawn and struck jury and objects to the refusal of the court to grant such request by refusing to select 24 qualified jurors from which the 18 shall be drawn and struck.
The Court: “Tour request for a drawn and struck jury is granted, but I am saying that you are not prejudiced by not calling more than 18 at this time because there are more than 24 jurors present in the court room at this time.
Mr. Coffelt: “We want 24 qualified jurors from which to select the 18.
The Court: “They are qualified. This panel of jurors has been qualified since last September. Proceed.”
The statutes applicable to drawn and struck juries are Ark. Stat. Ann. § 39-229 and § 39-231 (Eepl. 1962) which read as follows:
“Each party shall have three [3] peremptory challenges, which may be made orally—but if either party shall desire a panel, the court shall cause the names, of twenty-four [24] competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen [18] shall be drawn and entered on a list in the order in which they are drawn, and numbered. Each party shall be furnished with a copy of said list, from which each may strike the names of three [3] jurors and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve [12] names remaining on said original list shall constitute the jury.” [§ 39-229].
“Before the drawing of the list above mentioned, the court shall decide all challenges for cause which are presented, and if there are not twenty-four [24] competent jurors, bystanders shall be summoned as herein-before provided, until the requisite number of competent jurors is obtained, from which said list shall be drawn. Where there are several persons on the same side, the challenge of one [1] shall be the challenge of all under this subdivision.” [§ 39-231, amended in part by >§. 39-220 and § 39-220.1].
This court has had several occasions to consider these statutes since their original enactment as a part of the Civil Code of 1868. They were, however, first passed upon by the United States Supreme Court in 1895, in a case arising in the United States Court for the Indian Territory. (In 1890 Congress legislated that “certain general laws of the State of Arkansas which are not locally inapplicable or in conflict with this act or of any law of Congress . . . are hereby extended over and put in force in the Indian Territory until Congress shall otherwise provide”, including the above statutes.) The U. S. trial court refused to allow a drawn and struck jury. Speaking for the Supreme Court in Gulf, C. & S. F. Railway Co. v. Shane, 157 U. S. 348, 15 S. Ct. 641, 39 L.Ed. 727, Justice White stated, after quoting the statutes above:
“The action of the court below was in violation of this statute. It refused to make up the list of eighteen, as requested, and confined the right of peremptory challenge to the twelve jurymen called to be sworn, on the ground that such was the custom or rule of practice of the court. Manifestly, the ‘rule’ or custom of the court could not override the mandatory terms of the statute. That to thus empanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error is clear.”
In Young v. Morrison, 159 Ark. 270, 251 S. W. 869, after quoting from the Shane case, supra, this court said that, “We concur with the Supreme Court of the United States in this interpretation of our statute, ...” (but went on to hold that in that case there had been substantial compliance with the statute). Republic Mining & Mfg. Co. v. Elrod, 208 Ark. 150, 185 S. W. 2d 99, deals decisively with the point here under consideration in the following language:
“These provisions of the statutes are mandatory, the language used is plain and unambiguous and requires that all challenges for cause shall first be' disposed of and then the names of twenty-four competent jurors written upon separate pieces of paper and placed in the box, from which eighteen names shall be drawn, and from the list of these eighteen names furnished the parties, they shall strike their peremptory challenges. The trial court erred in refusing to place names of twenty-four competent jurors in the box in accordance with the plain statutory mandate.”
In the case at bar the error of the trial court is patent.
On direct appeal the Highway Commission contends that the trial court erred in refusing to exclude opinions of value given by appellee Stanley and one of his witnesses. It would be of no value to detail the testimony objected to, which is lengthy. Suffice it to say that there was not such comprehensive proof of a substantial nature so as to bring appellees’ evidence within the purview of City of Little Rock v. Moreland, 231 Ark. 996, 334 S. W. 2d 229. Moreover, much of the testimony here adduced is contrary to the standards set out in the first Stanley case, Ark. State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173. Owing to the necessity of a re-trial for the error previously indicated, we take this occasion to reiterate those principal standards:
“Even the opinion of an expert in the field of land valuation is not substantial evidence if he fails to show a fair or reasonable basis for his conclusion.”
...“‘Asa general rule, the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral that it contains and then multiplying that estimate by a fixed price per unit.’ ”
, , “ The ultimate question for the jury is the market value of the land, the price that would be agreed upon by a willing buyer and a willing seller in a transaction at arm’s length. The mechanical process of assigning a retail value to every yard of mineral within the earth does not carry the jury beyond the realm of guesswork. That narrow formula fails to take into account vital considerations such as the cost of excavating the material, the cost of processing it, overhead expenses, the market for the finished product, and so on. In the case at bar the jury had almost no information about these matters. . . . The appellees’ proof left the jury without the facts needed for an answer to this question. ’ ’
For the trial court’s error in refusing appellees a full drawn and struck jury, the case is reversed and the cause is remanded for a new trial.
Bobinson, J., not participating. | [
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G-eobge Rose Smith, J.
This is a suit by the appellant to cancel certain deeds as clouds upon the plaintiff’s title to a forty-acre tract, to quiet the plaintiff’s title to the land, and to recover double damages from the plaintiff’s grantors. At the close of the plaintiff’s proof the chancellor sustained a demurrer to the evidence, finding that Tumlison had parted with his title in 1938 and therefore was not in a position to maintain the suit. Whether the chancellor’s reasoning was correct is not argued in the appellant’s brief and hence is not an issue here. Fitzhugh v. Leonard, 179 Ark. 816, 19 S. W. 2d 1010.
Tumlison testified that he bought the land from Riley and Mears in 1930, received a deed from them in 1934, and had possession from 1930 until 1938. In the latter'part of 1938, after Tumlison had moved off the land, he found that H. C. Harville had taken possession. Tumlison says that he made an oral agreement with Harville by which Harville was to buy the land for $650, with the money to be paid when Harville became able to pay it. In the meantime Harville was to remain in possession and keep the taxes paid.
Harville died in 1945 without having paid anything upon the purchase price. What became of the title after Harville’s death is not clearly shown by the proof. Tumlison has not been in possession since 1938. A number of conveyances have been made by persons who seem to derive title either from Tumlison’s grantors or from Harville, but it is not shown that any claimant has been in adverse possession for a sufficient length of time to acquire the title.
Counsel for the appellees have not filed a brief, but they have insisted by motion that the decree should be affirmed for noncomplian.ce with Rule 9. It is true that the appellant’s abstract and brief do not conform as well as they should to our rules. The abstract contains much argumentative matter and is not supported by page references to the record. Six points for reversal are listed, but the brief is not correspondingly subdivided, as required by Rule 9 (f). We hardly think, however, that the deficiencies are so serious as to require a summary affirmance; so we shall consider the appellant’s principal arguments upon their merits.
It appears that Tumlison’s grantors, after having-conveyed the land to him, executed a second deed purporting to convey the property to someone else. It is now contended that Tumlison is entitled to double damages from the surviving grantor, under the statutes making it a criminal offense for one to sell the same land to two different persons and providing for double damages to the defrauded grantee. Ark. Stat. Ann. §§ 41-1933 and -1934 (1947).
The trouble is that there is no proof that this asserted conduct on the part of Tumlison’s grantors has in fact damaged him. It is true that Tumlison has been out of possession since 1938, but he admits that he voluntarily relinquished possession to Harville. We find nothing in the appellant’s abstract of the record to indicate that his own title has been adversely affected by any later deed that his grantors may have executed. As a condition to the recovery of double damages a plaintiff must first show that he has been damaged. Here that proof is wanting.
It appears that one of the appellees has an abstract of title to the tract in dispute. In the course of the trial the chancellor denied the plaintiff’s request that this defendant be compelled to produce this abstract and make it available for examination by plaintiff’s counsel.
We find no error in this ruling. Although there was no formal motion for discovery under the statute, we may assume that the principles embodied in our discovery act are controlling. That statute contemplates that a party may, for good cause, be afforded an opportunity to examine documents which themselves constitute evidence, Ark. Stat. Ann. § 28-356 (Repl. 1962), or which may reasonably be expected to lead to the discovery of evidence. § 28-348 (b). Here the abstract of title falls only in the latter class.
The trial court has wide discretion in determining whether there is good cause for the discovery of documents. Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613. We think the requirement of good cause was not met in this instance. There is no suggestion that the abstract of title contains any information that is not a matter of public record. No doubt the owner of the abstract paid for having it made. The only suggested cause for the requested discovery is that it would save plaintiff and his attorney either the trouble of searching the public records or the expense of obtaining an abstract of their own. In the absence of any legal or contractual duty binding the defendant to submit the abstract to the plaintiff, and no such duty is shown, the chancellor did not abuse his discretion in refusing to compel the defendant to permit his private property to be used in the preparation of his adversary’s case.
Complaint is made of the chancellor’s refusal to require various defendants to answer interrogatories attached to the plaintiff’s pleadings. More than seventy such interrogatories were filed. Counsel for the defendants filed objections to a number of the inquiries, as they were entitled to do. Ark. Stat. Ann. § 28-355 (Repl. 1962). The chancellor considered the matter with care and filed an opinion directing that only certain interrogatories be answered. Since the abstract of the record tells us nothing about the interrogatories that were not to be answered we are not in a position to say that the chancellor was wrong in ruling as he did.
It may be that Tumlison has suffered an injustice at the hands of the appellees, but if so the wrong occurred many years ago. As we said in Cunningham v. Brum back, 23 Ark. 336: “The law wisely holds that there shall come a time when even the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed than that ancient strife should be renewed.”
Affirmed.
Johnson, J., not participating. | [
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Frank Holt, Associate Justice.
Tbe appellant was charged with the offense of permitting gambling. The trial court, sitting as a jury, found the defendant guilty and fixed his punishment at a fine of one hundred dollars and costs and thirty days imprisonment, from which judgment comes this appeal.
For reversal appellant adamantly urges only the point that:
‘ ‘ The trial Court erred in not sustaining the motion of the defendant to quash and strike the testimony that was given by police officers who went upon the private property of the AMVET POST NO. 60, and made an arrest without a search warrant in violation of the Fourth Amendment to the Constitution of the United States of America, and in violation of Article 2, Section 15 of the Constitution of the State of Arkansas.”
We proceed to review the evidence in this case. Based upon “several reports that there was gambling-going on down there” at this club two officers, dressed in plain clothes and in accordance with a pre-arranged understanding with their superiors of the North Little Rock Police Department, appeared at the club room door about midnight of March 16, 1962 and sought admission. They had no search warrant. Upon the doorkeeper’s inquiry if they -were members, one of the officers represented that he knew the drummer in the band. The officers were admitted upon the payment of one dollar with the remark: “Go on in and have a good time.” They ordered mixed drinks and after a few minutes one of the officers inquired of the barmaid where his fellow officer had gone. She directed him to another room in the club where he saw his fellow officer and two other men playing cards with money and chips being used in the game. Based upon this observation five individuals, including the appellant, were placed under arrest and charged with violating the gambling laws. The officers seized as evidence the cards, chips and money which were made exhibits to their testimony at the trial of the case.
There were approximately fifty to sixty persons on the premises of the club, including several teenagers, where the officers observed the serving of mixed drinks and the gambling activity. Edward Boerner, Jr., aged nineteen (19), testified that on this occasion he sought and gained admittance without being a member. The officers did not identify themselves until they made the arrests and seized the evidence of gambling. When queried as to why they did not secure a search warrant, one of the officers testified that from their information they considered it unnecessary in order to gain admittance.
The record reflects that only two individuals, appellant and one other, appeared to be members of this club. There is no other evidence that those present were admitted under rights of membership. According to the officers the appellant said that “he was the operator and he had quite a bit of money involved in it and was going to get his money out of it.” Also, it “was the only way he had to make a living.” Based upon this evidence the appellant seeks to invoke the aid of our Federal and State Constitutions on the premise that this action of the police officers was an invasion of his privacy and, therefore, an unreasonable search and seizure.
We do not agree with appellant. We do not think that his constitutional rights as guaranteed by our Federal and State Constitutions were violated. From the evidence in this case it appears to us that the premises were not of a private nature. On the contrary, they were of such a nature that the general public, including teenagers, was indiscriminately admitted. The Constitutional guarantee against unreasonable search and seizure does not apply to entry into a public place. The right of these officers to be present on these premises and to perform their duty is succinctly expressed and approved by us in Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, where we said:
“This court, in Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, after quoting with approval from Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, said: ‘The protection of the search and seizure clause of the Constitution does not extend to the entry of an officer into a public place to make an arrest upon probable cause that an unlawful act is being committed there. The protection applies, not to all premises or property, bnt only to dwelling houses or other such private places.’ ”
Also, in the instant case no search was required and, therefore, the provisions of our Federal and State Constitutions are not applicable. The evidence secured by the police officers was open to the eye and hand. It was unnecessary to conduct a search. 47 Am. Jur., Search and Seizure, § 20, p. 516; 79 C.J.S., Searches and Seizures, § 9, p. 788 and § 69, p. 850; 89 A.. L. it. 2d p. 773; Ellison v. United States, 206 F. 2d 476 (1953). There was no exploratory search-by the', officers seeking to uncover and find any papers' and effects of the appellant which were hidden or concealed from their view. Officers of the law are not required to close their eyes and ignore such illegal activities after they are lawfully on the premises. McDonald v. United States, 166 F. 2d 957 (1947); Bonn v. State, (Alas. 1963) 372 P. 2d 785.
The appellant'' relies for reversal upon the recent decision of Mapp v. Ohio, 367 U. S. 643 (1961). In that case the appellant’s house was involved instead of a public place; the officers forcibly gained entrance against Miss Mapp’s protest; the officers'conducted an exploratory search of her residence in an effort to discover if a suspect was hiding there. In searching her residence they incidentally found secreted there pornographic material. The Supreme Court of the United States reversed her conviction of possession of such holding that the search and seizure by the local officers was unreasonable' and, thus, in violation of her constitutional rights. We recognize the force and effect of the Mapp case, however, the fact situation in the instant case does not call for its application. Therefore, there is not presented to us the “proper question” to re-examine our former decisions as announced by our caveat in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, and reiterated in Stewart v. State, 233 Ark. 230, 343 S. W. 2d 568 and Burke v. State, 235 Ark. 882, 362 S. W. 2d 695.
As was said in Carroll v. United States, 267 U. S. 132, our Federal Constitution “does not denounce all searches or seizures, but only such as are unreasonable. * * * The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in the manner which will conserve public interests as well as the interests and rights of individual citizens.” See also 47 Am. Jur., Search and Seizure, § 52, p. 532; Van Hook v. Helena, supra; State v. Blood, (Kan. 1963) 378 P. 2d 548; Commonwealth v. Tanchyn, (Penn. 1963) 188 A. 2d 824.
When we view the Fourth Amendment of our Federal Constitution and Article 2, § 15 of our State Constitution [which is essentially in the same language] in this light we are of the opinion there was no invasion of appellant’s privacy in the case at bar.
Affirmed.
McFaddin, J., concurs.
“[Unreasonable searches and seizures.]—The right of the people to be secure in their persons, houses, papers, and effects, against um-easonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or thing's to be seized.”
“§15. Unreasonable searches and seizures.—The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.” | [
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Paul Ward, Associate Justice.
This litigation stems from a local option election in Ouachita County relating to the manufacture and sale of intoxicating beverages. There is no dispute as to the pertinent facts and the record contains no testimony.
Facts. The election, held on November 6, 1962, resulted in 4,604 votes against and 4,330 in favor of the manufacture and sale of intoxicating beverages. A recount showed different figures but did show 184 more votes against than in favor of the manufacture and sale of alcoholic beverages. In due time appellants (represented by their attorney) filed in the Ouachita County Court a petition contesting the result of said election. Also, in due time, appellees filed a response to which were attached interrogatories directed to appellants regarding certain allegations contained in their petition.
Trial was set for January 7, 1963, but, since appellants’ attorney was a member of the legislature, the trial was reset [in accord with Ark. Stat. Ann. § 27-1401 (Repl. 1962)] for April 15, 1963. On April 14, 1963 appellants filed in the county court a motion for continuance on the ground that their attorney was in the hospital and would be unable to attend the trial.
On the 15th, in the absence of their attorney, appellants presented their motion for a continuance which motion appellees resisted and requested a trial on the merits. When appellants failed to proceed further, the County Judge, on April 15, 1963, (a) denied the motion for a continuance; (b) dismissed appellants’ contest petition; and (c) directed the court clerk to make and enter-his certificate certifying the result of the election in favor of appellees.
On May 16, 1963 appellants filed in circuit court a petition for a writ of certiorari alleging numerous reasons why that court should direct the county court to hear the contest petition on its merits. Attached to the petition for certiorari were copies of the pleadings and the order filed in the county court.
To appellants’ petition for a writ of certiorari appellees filed a demurrer based on the assertions (among others) (a) that the petition contains no allegation of want of jurisdiction in the county court, and (b) that certiorari cannot be used as a substitute for appeal. The circuit court, after oral arguments by both sides, sustained the demurrer and dismissed appellants’ petition. This appeal is from that order.
In our judgment the order of the trial court must be affirmed. Appellants’ proper remedy was by appeal from the order of the county court. Certiorari will not take the place of an appeal [unless the right of appeal has been lost by no fault of the aggrieved party—which is not the case here] and lies only when the inferior court acted without jurisdiction or beyond its jurisdiction. This rule of procedure was clearly announced in the early case of Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064. Since the date of the above decision (1896) the rule has been affirmed by this Court no less than fourteen times including the recent case of Hyder v. Newcomb, 234 Ark. 486, 352 S. W. 2d 826.
In the case under consideration there can be no doubt that the county court had jurisdiction to hear the contest. Ward v. Boone, 231 Ark. 655, 331 S. W. 2d 875. In any event appellants are in no position to contend otherwise because they chose that forum. It follows therefore that the county court also had jurisdiction to deny their motion for continuance. 'Whether or not the county court abused its discretion could not be re-examined by the circuit court on certiorari. Hardin v. Norsworthy, 204 Ark. 943, 165 S. W. 2d 609.
In view of what we have said above, we cannot escape the conclusion that the circuit court acted properly, and its judgment is affirmed.
Affirmed. | [
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Ed. F. MoFaddin, Associate Justice.
The appellants are George Williams, Henry Turney, Jess Holeman, and Marvin Stripling. They were jointly charged, tried, and convicted of the crimes of burglary and grand larceny (Ark. Stat. Aim. § 41-1001 and § 41-3907 [1947]); and they prosecute this appeal. Henry Turney filed a separate motion for new trial containing eleven assignments, and the other three appellants filed a joint motion for new trial containing fourteen assignments. In addition, Williams filed a separate pleading entitled, “Motion to Set Aside the Verdict as to George Frank Williams,” and this pleading contained two assignments. The appellants have grouped all their assignments in eighteen points which are presented in their joint brief; and we will group the various points in suitable topic headings.
The information charged—and the State’s evidence was designed to establish—that on the 18th of February, 1962, the four named appellants committed the crimes of burglary and grand larceny by feloniously, etc. breaking and entering the building of Roy Nelson, Jr. in Lonoke County, Arkansas, and taking away hot water tanks, tools, plumbing equipment, a rifle, a chain saw, and various other items in excess of the value of $35.00. The appellants were arrested in Faulkner County on February 19, 1962; and the articles mentioned in the information were found and returned to the owner, Roy Nelson, Jr. The legality of alleged confessions and the way the officers obtained the property constitute some of the issues on this appeal, as well as other rulings in the course of the trial.
I. Alleged Error In Admitting Testimony Relating To Matters Which Occurred Four Bays Before The Crimes Were Alleged To Have Been Committed. State Police Officer Bill Brashers testified that on February 14, 1962, he arrested Marvin Stripling in Lonoke County for driving a car without a driver’s license; that Stripling was driving a white Ford pick-up truck; and that Stripling said the truck belonged to Henry Turney, who lived in Faulkner County, Arkansas. Brashers testified that he checked out the license number and found that the truck was registered in Turney’s name. Lonoke City Officer Bobby Joe Davis testified that Brashers brought Stripling to the Lonoke City Hall; that Stripling called Turney iu Conway, who came to Lonoke and posted bond for Stripling; and that Stripling and Turney left in the said white Ford pick-up truck.
Objections were made to all of this testimony because it related to events four days before the crimes here charged; but this testimony was admissible as links designed to connect Turney and Stripling with the crimes here charged, since it was testified that the said white Ford pick-u-p truck was the same one that was used to haul away the articles from Nelson’s house on February 18th and some of the stolen property was found in the same truck, as will subsequently be mentioned. The evidence was that Turney and Stripling were together in the car that ivas subsequently used to carry away the stolen articles; and this evidence was for the purposes of showing identification and complicity in the crimes here charged. The evidence detailed circumstances tending to connect the owner and driver of the truck with the crimes charged; so the appellants’ objections on this point are without merit.
II. The Appellants Claim That The Alleged'■ Confessions By Stripling And Iloleman Should Not Have Been Admitted In Evidence. Roy Nelson testified that on Saturday, February 17th, he was constructing a dwelling seven miles from Lonoke and worked until about 8 P.M.; that when he went back to work on Sunday morning, February 18th, he discovered that someone had stolen all of the material supplies, parts tools, etc., from the house, including hot water heaters, bathroom fixtures, doors, plywood, etc.; that he could see from the vehicle tire tracks on the ground where the vehicle and attached trailer had entered and left the premises; and that he immediately contacted the Sheriff of Lonoke County and gave him a list of the articles stolen of a value in excess of $2,000.00. Sheriff Minton of Lonoke County testified that after observing the tracks and other matters at the Nelson house, he suspected that the said tvhite Ford pickup truck which Stripling had been driving on February 14th was the vehicle that had been used in the commission of the burglary and grand larceny. Minton further testified that he and State Policemen Caldwell and Mullinix obtained from a Justice of the Peace in Lonoke County “John Doe” warrants for the arrest of the occupants of the said truck; that they went to Conway -where the truck was located at the home of appellant Holeman; and that Stripling and Holeman were arrested and taken to Lonoke and incarcerated. The officers testified that Holeman and Stripling confessed their parts in the crimes.
In advance of the jury trial the appellants moved to exclude the confessions of Holeman and Stripling as illegally extorted and as obtained under force and duress. At the said advance hearing Holeman and Stripling-testified as to the alleged beatings, etc. administered to them to force the confessions. The Trial Court held that the issue of the voluntariness of the confessions was for the jury; and at the trial the officers just as stoutly denied all such mistreatment of the prisoners and claimed that the confessions were voluntarily given. We cannot say that there was error in the ruling of the Trial Court in submitting to the jury the issue of the voluntariness of the confessions. See Jones v. State, 213 Ark. 863, 213 S. W. 2d 974; and Moore v. State, 229 Ark. 335, 315 S. W. 2d 907. The issue of the voluntariness of the confessions was submitted to the jury under instructions not here claimed to be erroneous. The question of whether the arrests were made by the State Police Officer, who could make arrests in Faulkner County, or by Sheriff Minton of Lonoke County, who could not make arrests in Faulkner County, was a fact issue; and no error is claimed as to the instruction on this matter.
III. Appellants Claim A Violation Of Their Constitutional Rights Against Unreasonable Search .and Seizure. This point is most vigorously urged; and this is the most difficult question in the case. In advance of the jury trial the appellants presented their motion to suppress all evidence obtained by search and seizure and claimed that there were no valid search warrants. We recognize the holding of the Supreme Court of the United States in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R. 2d 933. Under that case, evidence illegally obtained is not admissible in the State courts, regardless of the previous holding of the State courts on the point. The question here is whether the the facts in this case bring it within the holding of Mapp v. Ohio.
The testimony of Officer Caldwell detailed the course of events. The officers first arrested Holeman about 10 P.M. February 18th, and then arrested Stripling about thirty minutes later. When Holeman was arrested the officers started to search his house, but Mrs. Hole-man refused them entrance until a search warrant could be shown her. The officers relayed the information hack to Conway and claimed that they obtained a search warrant from the Municipal Court in Conway. We are convinced from the evidence that the said search warrant so obtained was entirely void and worthless in every respect. It would serve no useful purpose to detail all of the evidence that impels ns to such conclusion. The fact is that we proceed is this case as though there had been no search warrant of any kind.
As aforesaid, Mrs. Holeman refused to allow a search of the house without a warrant. Armed with the said warrant the officers searched the Holeman house, but they found nothing; so such search, though illegal, obtained no evidence; and thus the search of the Hole-man house passes out of the case. If any evidence had been obtained in the Holeman house wre would promptly hold that such was illegally obtained.
There was the white Ford pick-up truck parked in front of Holeman’s house; and in the truck the officers found a hand drill, some tools, and other miscellaneous articles, all of which wTere later identified by Nelson as having been stolen from him. Were these articles obtained from the truck in violation of the appellants’ constitutional rights against unreasonable search and seizure? There was no entry into a house, building, or dwelling, in order to see these articles in the truck parked out in the open. In 79 C.J.S. p 831, “Searches and Seizures” § 66, cases from various jurisdictions are cited to sustain this text: “The constitutional provisions against unreasonable searches and seizures do not prohibit a search without a search warrant that does not constitute a trespass. Hence the obtaining of information by the eye, where it is not aided by a trespass, does not constitute an unlawful search, since no search is involved, and the use of a flashlight or searchlight in aid of vision does not render it illegal. The constitutional guaranty does not prohibit a seizure without a search vrarrant where the articles sought are disclosed to any one of the senses . . .” Thus the articles in the truck, parked out in the open, wmre seen by the officers and taken; and the constitutional provisions against unreasonable search and seizure afford the appellants no shield against the articles that were in the truck and so seized.
After the confessions of Stripling and Holeman, as heretofore mentioned, warrants were obtained for the arrest of Williams and Turney; and in the early morning of February 19th they were arrested. According to the State’s evidence, Turney told the officers that the stolen property was stored in a trailer near the settlement of Greenbrier in Faulkner County, several miles from Conway. Turney and Williams accompanied the officers to Greenbrier and pointed out the house trailer, and Turney unlocked the door to the trailer; and nearly all of the stolen property was found in the said house trailer. Turney and Williams assisted the officers in taking the articles out of the trailer and loading them into a truck so the articles could be returned to Nelson, the owner. Were the appellants’ constitutional protections against unreasonable search and seizure violated by the officers thus obtaining the articles from the trailer and detailing the evidence concerning same1? Here, there was evidence, not only of waiver and consent, but also of active participation in the search; so there is no merit to the contention of the defendants that their rights against unreasonable search and seizure were violated insofar as concerns the articles in the trailer. In 79 C.J.S. p. 816 et seq., “Searches and Seizures” § 62, there is a discussion of waiver and consent; and the holdings from the various jurisdictions—including the United States Supreme Court—are summarized:
“The constitutional immunity from unreasonable searches and seizures may be waived, as by a voluntary invitation or consent to a search or seizure. Thus individuals may waive their immunity to illegal searches of their persons, possessions, or dwelling houses, as well as to the illegal search of their premises, places of business, and searches and seizures of books, papers, or records. Hence, one who has thus consented to a search cannot thereafter complain of irregularities in the search warrant, or question its sufficiency or the manner of its issuance, since an invitation or consent to the search dispenses with the necessity of a search warrant altogether.
The State’s evidence further showed that after the articles from the house trailer had been recovered, as above mentioned, the officers asked Turney if there were any more stolen articles; and Turney said there was a hot water tank and sink at the home of his father-in-law a short distance away from the house trailer. The party of Turney, Williams, and the officers, proceeded to that house. Turney and Williams went inside and brought out the hot water tank and sink, which were placed in the truck to be returned to Nelson. The officers asked Turney if any other stolen property was in the house; and Turney turned on the light and told the officers they were welcome to look. They went in and found nothing except the connection to the sink, which was returned to Nelson with the other property.
Were the appellants’ constitutional protections against unreasonable search and seizure violated by the entrance into the home of the father-in-law and the obtaining of the hot water tank and sink and connection to the sink”? According to the State’s evidence, Turney and AANlliams voluntarily brought the hot water tank and sink from the house before the officers entered the house, so as to these articles there was no entry of the building by the officers. It is only as regards the connection to the sink that the officers entered the house of the father-in-law, who was not shown to have been present or anywhere in the vicinity or in any wise connected with any part of the case. Only the appellants are objecting to the actions of the officers. What we have said in regard to waiver and consent in the search of the trailer applies with equal force to the articles found in the house of Turney’s father-in-law; so the defendants’ constitutional rights against unreasonable search and seizure were not violated.
IV. Refusal To Exclude Sheriff Minton From The Court Room. The motions for new trial contain these two assignments:
“2. A motion to suppress all evidence illegally obtained, and motion to quash information based on said illegally obtained evidence, was filed by the defendants herein. A hearing on said motion was had preceding the trial. The hearing was on an afternoon the trial began the next morning. At the hearing the Rule was asked for, but the Court permitted the Sheriff of Lonoke County to stay in the Court Room and hear all of the defendants testify as to their illegal arrests, and the unlawful and illegal search and seizure of their premises. The Sheriff was also permitted to remain in the Courtroom the next morning, after both the State and the Defense had asked for the Rule. He remained there until-the Jury was selected and during the opening statements of the Prosecuting Attorney and defense counsel, and the Court excluded him from the room at that point. This was error and in violation of Arkansas law which requires the exclusion of witnesses, when the rule is asked for.
“4. The trial court erred in refusing to exclude a witness for the State, Sheriff Warren Minton, upon the hearing of the motions to suppress evidence, after the rule was asked by defendants, and then permitting Sheriff Warren Minton to testify in the trial of these cases.”
These assignments relate to a ruling at the preliminary hearing on the motion to suppress the evidence, as well as to a ruling made at the time of the jury trial. We find no merit in these assignments. The hearing before the Court on the motion to suppress the evidence was on a day in advance of the jury trial, and, of course, before the jury was selecte.d At the said hearing to suppress the appellants asked for “the rule”; and this occurred :
“THE COURT: I will let you have the rule. What witness do you want to call? The sheriff will have to remain to wait on the court, so what witness do you want to call.
“MR. JONES: We object to any witness remaining in the court room.
“THE COURT: I will permit the sheriff to remain.
“MR. JONES: Note our exceptions to the presence of any witness that will testify.
“THE COURT: All witnesses that are going to testify please stand and raise your right hand and be sworn in. The rule has been asked for so you will have to retire from the court room. Who is your first witness, Mr. Jones?”
Sheriff Minton was not called as a witness by the State or the appellants at the said hearing on the motion to suppress the evidence, so he was not a witness at that hearing, and thus the appellants were not deprived of any of their rights by the fact that the Sheriff waited on the Court at the hearing on the motion to suppress the evidence.
The Court denied the motion to suppress, and the next day the case came for trial. A jury ivas selected, and the following occurred at the beginning of the trial:
“MR. JONES: Let the record show that the state has asked for the rule and witnesses for the State and the defendants are to retire to the witness rooms and Sheriff Minton will be a material witness in this cause and he is to remain in the court room after the rule has been asked for and let the record now reflect at this time we enter our objections on behalf of the defendants for the witness, Sheriff Minton to remain in the court room.
‘ ‘ THE COURT: Lonoke County has only one sheriff and this court has got to have a sheriff to wait, on it, to wait on the Court in the calling of witnesses and to keep order in the Court and your motion will he overruled and you may save your exceptions.
“MR. JONES: Note our exceptions.
“MR. DONOVAN: Note the defendants’ exceptions. ’ ’
Then when Sheriff Minton was called as a witness the defendants objected to the Court allowing him to testify, and the following occurred:
“THE COURT: Let the record show I first overruled the motion because the Court stated that it needed some officer to wait on the court, but before any testimony was taken I changed that ruling and Mr. Minton was excluded from the Court room and he heard no testimony from any of the witnesses and the other testimony that he did hear was before the court in the absence of the jury and the jury did not hear any of that testimony as it was before the Court. I will overrule your motion.
“MR. DONOVAN: Note our exceptions.”
The appellants insist that under Act No. 243 of 1955 they had an absolute right to have Sheriff Minton excluded from the trial. Said Act reads:
“AN ACT to Amend Arkansas Statute (1947) § 28-702 Authorizing the Exclusion of Witnesses in Criminal Actions.
“Be It Enacted by the General Assembly of the State of Arkansas:
“SECTION 1. If the accused or his attorney requests it, the judge shall exclude from the court room any witness, including but not limited to the officers of the court, officers of the law and experts not at the time under examination, so that they may not hear the testimony of other witnesses.”
It is fairly evident from the statement made by the Trial Judge, as last quoted above, that shortly after the ruling that Sheriff Minton could remain in the court room the attention of the Court was called to the said Act No. 243 of 1955, and the Court then immediately excluded Sheriff Minton from the court room so that the Sheriff heard none of the testimony. We therefore see that the Sheriff was excluded and heard none of the testimony, and so no error was committed prejudicial to the appellants.
V. Other Rulings Claimed As Error. The appellants assigned as error a number of other rulings of the Trial Court, such as: alleged prejudicial remarks of the Prosecuting Attorney in the argument; refusal to exclude testimony of the witness Bryant; allowing certain officials to testify; remarks of the Trial Judge; and other rulings. To list and discuss all of these assignments would unduly extend this Opinion and serve no useful purpose. It is sufficient to say that we have examined each and all of the assignments and find no reversible error shown in the record.
Affirmed.
Johnson, J., dissents.
The Fourth Amendment to the United States Constitution provides :
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but uppn probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Art. 2, § 15 of the Arkansas Constitution provides:
“The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”
There are many annotations and law review articles concerning Mapp v. Ohio, which was decided June 19, 1961. We list only a few: “Federal constitution as affecting admissibility of evidence obtained by illegal search and seizure,” in 84 A.L.R. 2d 959; “Constitutional Law, Searches and Seizures,” 15 Ark. Law Rev. 445; “Search and Seizure— The Exclusionary Rule and the Question of Standing,” in 17 Ark. Law Rev. 176; “Mapp v. Ohio: Pandora’s Problems for the Prosecutor,” in 111 U. of Pa. Law Rev. 4; “Midnight Welfare Searches and the Social Security Act,” in 72 Yale Law Journal 1347. Distinct from the Mapp case there are a number of other pertinent and informative articles, some of which are: “Propriety or lawfulness of seizure, not incident to arrest, of papers, documents, letters, books and records not described in search warrant,” in 79 A.L.R. 2d 1005; “Lawfulness of nonconsensual search and seizure without warrant prior to arrest,” in 89 A.LR. 2d 715; and “Search and Seizure: a No-Man’s Land in the Criminal Law,” in 49 Cal. Law Rev. 474. Some of our more recent cases involving search and seizure are: Clubb v. State, 203 Ark. 688, 326 S. W. 2d 816; Stewart v. State, 233 Ark. 230, 343 S. W. 2d 568; Burke v. State, 235 Ark. 882, 362 S. W. 2d 695; and Gerard v. State, 237 Ark. 287, 372 S. W. 2d 635 (Opinion delivered November 26, 1963).
To the same general effect see 47 Am. Jur. p. 547, “Searches and Seizures” § 71.
To complete the narrative it is proper to add that all of the stolen property was returned to Nelson on February 19th and he identified and inventoried it and receipted the officers for it. Nelson also testified as to admissions in the nature of confessions that some of the appellants made to him; but it is unnecessary to detail all such testimony.
Since we have not heretofore discussed Act No. 243 of 1955, it is proper to point out:
(a) That the Act is carried into Ark. Stats, as 5 43-2021 (Supp. 1963).
(b) The Act does not purport to amend Ark. Stat. Ann. § 43-615 (1947) which relates to exclusion of witnesses at preliminary hearings.
(c) The caption of the Act No. 243 purports to apply only to criminal trials.
(d) Even though Ark. Stat. Ann. § 28-702 (Repl. 1962) is a part of the Code of Civil Procedure, nevertheless Ark. Stat. Ann. § 43-2004 (1947) provides that the rules of civil procedure apply generally in trial of criminal cases.
(e) Whether the language in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, was a comment on the effect of Act No. 243 of 1955 is not necessary for decision here.
(f) Generally, see 8 Ark. Law Review 506 and 9 Ark. Law Review 402. | [
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Sam Robinson, Associate Justice.
This is a zoning case. The action was filed by appellees, Frederick U. Andres and his wife, Grace, to enjoin the Board of Directors of the City of Little Rock, its employees, commissioners and agencies, from preventing the plaintiffs from using their property at 2115 Broadway, Little Rock, for purposes designated as “F Commercial” by the Little Rock zoning ordinances. The Chancellor granted the relief prayed and the City of Little Rock has appealed.
The property involved is the home of appellees and is located in an area designated in the zoning ordinances of Little Rock as ‘ ‘ C-2 Family District. ’ ’ Appellees contend that Broadway in general, and the block in which their property is located in particular, is no longer suitable as a family district. They, therefore, applied to the Little Rock Planning Commission to have the zoning on their property changed to commercial; the Planning Commission denied the request; appellees appealed to the Board of Directors of Little Rock and again the request was denied.
Appellees then filed this suit in the Pulaski Chancery Court, alleging that the refusal of the Little Rock authorities to rezone the property was arbitrary, and placed unreasonable limits on the use of the property; that a “C-2 Family District” bears no definite relation to the health, safety and general welfare of the inhabitants of the area; that the limitation placed on the use of the property deprives the plaintiffs of their property without due process of law in violation of the 14th Amendment to the Constitution of the United States and Article 2, Sec. 8 of the Constitution of Arkansas, and amounts to the taking of private property for public use without compensation in violation of Article 2, Sec. 2 of the Constitution of Arkansas.
The chancellor, in holding that the petition for rezoning should be granted, found as a fact that the action of the Planning Commission and the Board of Directors of Little Rock in refusing to change the zoning on the property was arbitrary. If tbe authorities acted arbitrarily in denying the change in zoning, such action is a sufficient reason to' grant the relief prayed. City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883; City of Little Rock v. Bentley, 204 Ark. 727, 165 S. W. 2d 890.
If the’ chancellor’s finding to the effect that the authorities were arbitrary in not changing the zoning is supported by a preponderance of the evidence, the decree must be affirmed.’ City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116; City of Little Rock v. Henson, 220 Ark. 663; 249 S. W. 2d 118; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446.
Zoning ordinances are valid only by reason of the police power. Yokley Zoning Law and Practice, Vol. 1, p. 1; City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S. W. 2d 582. Such ordinances are in derogation of common law and operate to deprive an owner of property of a use thereof which would otherwise ■be lawful, and should be strictly construed in favor of the property owner. City of Little Rock v. Williams, 206 Ark. 861, 177 S. W. 2d 924. On the theory and purposes of zoning the courts have said: “The proper purposes of zoning have been said to conserve the value of property and encourage the most appropriate use of land.” Griggs v. City of Paterson, 39 A. 2d 231. One of the main purposes of zoning is the stabilization of property values in a neighborhood. Libby v. Board of Zoning Appeals, 118 A. 2d 894.
Prior to the erection of the Broadway Bridge across the Arkansas River about 40 years ago, there was no through traffic on Broadway; it was just another residential street. Many of the finest homes in the city were located on Broadway. After the building of the Broadway Bridge and the great development of automobile and truck traffic, Broadway became one of the principal thoroughfares of the nation. It became a link in U. S. Highways 65, 67, 70, 167 and State Highway 5. A large portion of automobile traffic going from the eastern part of the United States to the west, and vice versa, neces sarily used Broadway, especially so in the winter months. The traffic count reached 28,000 vehicles per day. (Since the construction of the freeway around Little Rock it is estimated that the count will drop to about 11,000 per day.)
Twenty-five blocks south of the Arkansas River Broadway intersects Roosevelt Road. All of the through highways of which Broadway is a part go either to the east or west on Roosevelt.
Years ago all of Broadway south of the river to about 13th Street became commercial property, and in all probability the commercial district would have continued south except for the case of City of Little Rock v. Connerly, 222 Ark. 196, 258 S. W. 2d 881. It now appears that we made a mistake in reversing the decree of the chancery court in granting Connerly the right to put a commercial establishment at 14th and Broadway. In that case, however, twenty property owners joined in an intervention protesting the change in zoning. In the case at bar no property owners have intervened.
For many years there has been a service station at the southeast corner of 14th and Broadway. A large shopping center has been established on the property between 24th and 25th Streets on the east side of Broadway, and there is a large service station on the northwest corner of 25th and Broadway.
As Broadway changed from a residential street to an important commercial thoroughfare, property adjoining the street became progressively undesirable as a family district. Those who built the fine homes originally have moved from the street to other sections of the city. Some of the old homes have become rooming houses; some of the owners of property on the street testified that they cannot get satisfactory tenants who will pay the rent; other houses are vacant and becoming uninhabitable; some have been condemned.
All of the property is worth very little as residential property compared with other property in other sections of the city. It appears that a large part of the property has been offered for sale, but only a few buyers have been found, and those who have bought a residence on the street in recent years have done so because a very fine house could be bought at a very cheap price because it was located on Broadway. Mr. W. T. Shelton, one of only three people living on the street who gave testimony in opposition to rezoning, testified that he bought a house on Broadway in 1960 for $18,500. He was asked to describe it and he stated: “Brick, two story, palatial residence, very old. We have 1, 2, 3, 4, 5 rooms downstairs, 5 bedrooms and 2 baths upstairs, ornate. It is a mansion, built about 1910.”
In 1959, Mr. Claibourne Patty, a lawyer, bought a very fine house at 2020 Broadway which had been kept in excellent repair. The former owner had moved to another section of the city, and most of his friends had likewise moved. Mr. Patty stated that the house was built in 1905 and was expensively constructed; that for a relatively modest price he bought a large and ornate house that is a better house than he could afford to buy in another section of the city.
It was shown by numerous witnesses, including Mr. Patty, that south Broadway is riot a suitable street to live on if one is rearing children. The street is dangerous due to the traffic; there are no playgrounds; and the only white school serving that end of town has been changed to a school for colored.
Appellees have offered their property at 2115 Broadway, which they seek to rezone, for sale at $15,000 and cannot find a buyer. Mr. A. C. Read, the third person living on Broadway who testified against rezoning, is in the real estate business. He testified that appellees’ lot would be worth $15,000 or $17,000 if rezoned, and that appellees were going to tear down a house located thereon that would cost $35,000 to replace. In other words, the appellees can not get $15,000 for the lot with the $35,000 house on it, but can get $15,000 or $17,000 for the lot without the house if it is zoned commercial.
No one can afford to build a house on a lot on Broadway because after construction the property would not be worth what it would cost to build a nice house. If a lot becomes vacant because the house is condemned or is destroyed by fire, it has no value unless the property can be rezoned as commercial. An apartment house could not be built and rented successfully because no parking is permitted on Broadway and one lot would not be large enough to take care of the required parking. According to the undisputed evidence property on Broadway would have a reasonable and satisfactory value as commercial property.
In the case of Fentress v. Sicard, 181 Ark. 173, 25 S. W. 2d 18, this court said that change is the order of the times and that progress and development should not be hindered or obstructed; that the transition from a residential district into a business district is recognized as appropriate where the value of surrounding property, as business property, would not detract from its value, for residential purposes for which it has long since fallen into disuse so far as new and further development is concerned.
In all the circumstances we cannot say the finding of the chancellor that the city authorities acted arbitrarily in refusing to rezone appellees’ property is contrary to the preponderance of the evidence.
Affirmed.
McFaddin and Ward, JJ., dissent. | [
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Ed. F. McFaddin, Associate Justice.
This litigation involves an option deed. Walter Hill and his wife were plaintiffs below and are appellees here; and Tommy H. Russell and his wife were defendants below and are appellants here.
On an uncertain day in April 1962 Walter Hill and wife executed an instrument, whereby Tommy H. Rus sell acquired an option to purchase a lot for $21,300.00, provided the said amount was paid on or before April 1, 1963. On February 8, 1963, Hill and wife filed this suit to have the instrument declared void and removed as a cloud on their title. On February 28, 1963, Russell and wife filed their answer as follows:
“Come the defendants to Answer the Complaint in Equity to Cancel Deed and Quiet Title in Plaintiffs and by way of doing state:
‘ ‘ That they deny each and every material allegation contained in the complaint of the plaintiffs filed herein.
“WHEREFORE, defendants pray that this cause be dismissed, for their costs herein expended and for all other proper relief.”
The cause was heard ore terms by the Chancery Court. The plaintiffs claimed that no consideration of any kind was ever paid them; that the instrument was a mere offer to sell and, as such, could be withdrawn at any time; and plaintiffs cited and relied on such cases as Jones v. Lewis, 89 Ark. 368, 117 S. W. 561; and Lane v. Jackson, 135 Ark. 384, 205 S. W. 650. The defendants claimed that the option deed was for a valuable consideration and could not be withdrawn. The only witness for the defendants was Russell; and he testified: (a) that on January 6, 1961 the Hills had listed the property with Wallace Realty Company for sale at $21,300.00; (b) that the listing was for 120 days; (c) that the Hills can-celled the listing before the 120 days; (d) that Wallace Realty Company filed suit against the Hills for damages of $2,130.00 because of such cancellation; (e) that Russell was attorney for the Wallace Realty Company; (f) and that in March 1962 the said case of Wallace Realty Company v. Rill was dismissed in consideration of the Hills executing the option deed to Russell, as previously copied. Thus, the effect of Russell’s testimony was that there was a real and valuable consideration for the option deed and that the option could not be cancelled by the unilateral action of the Hills, as here attempted; and to sustain them the appellants cite such cases as Hogan v. Richardson, 166 Ark. 381, 266 S. W. 299; and Kelly v. Keith, 77 Ark. 31, 90 S. W. 150.
The Chancery decree was in favor of the plaintiffs both on the consideration issue and also because Russell had made no tender. The decree was entered on April 3, 1963, and contains, inter alia, this language:
“The Court further finds that the purported Option Deed was no more than an offer to sell and inasmuch as a nominal and not adequate consideration was mentioned in the said Deed, the Court further finds that the nominal consideration has never been paid. This Court having heard this portion of the case on March 27, 1963, this Decree having been prepared and presented to the Court on the date of the signing hereof, the Court finds that in addition thereto, that the defendants, and each of them, have failed to tender, offer or pay any money on or before the expiration of April 1, 1963, and that said Deed has also expired on the date of the signing of this Decree.”
Thus the Chancery Court assigned two reasons for ruling against the appellants: (a) no consideration was paid by Russell for the option deed; and (b) Russell never made any tender of the $21,300.00 before the option deed expired on April 1, 1963. Regardless of this first point, we agree with the Chancery Court on the second point—i.e., absence of tender; and therefore we affirm the Chancery Decree. The cases hold with practical unanimity that the optionee must make tender of the money within the time stated in the instrument. In 55 Am. Jur. p. 508 et seq., “Vendor and Purchaser” § 39 et seq., the holdings are summarized in this language: £ £ To constitute a valid exercise of an option to purchase land and impose a duty on the vendor to convey, the terms and conditions of the option must be complied with by the purchaser ... It is universally held, not only at law but also in equity, that the time named for the exercise of an option is to be regarded as of the essence of the option, whether so expressly stated or not. Unless an option is exercised within the time limited, the rights of the optionee expire without notice or declaration of forfeiture.”
Thus whatever right—-if any—Russell may have had under the option expired by the terms of the instrument before the entry of the decree, unless Hill did something that would excuse Russell from notice of acceptance of the option and tender of the purchase money. In this Court, Russell seeks to excuse himself from tender on the basis that the filing of this suit by Hill in February 1963 was a repudiation of the option and, as such, excused tender until after the conclusion of this litigation; and Russell cites and relies on such cases as Read’s Drug Store v. Hessig-Ellis, 93 Ark. 497, 125 S. W. 434; and Doup v. Almand, 212 Ark. 687, 207 S. W. 2d 601; and to these could be added Dickinson v. McKenzie, 197 Ark. 746, 126 S. W. 2d 95. But we hold that these cases are not applicable here because of the factual situation existing in this case, as will be later shown.
In 55 Am. Jur. p. 510, “Vendor and Purchaser,” § 40, the holdings are summarized:
“Under some circumstances the optionee’s delay in exercising the option has been held to be excused by various acts and statements of the vendor, such as statements and representations calculated to cause delay, the vendor’s absence or Ms evasive conduct, Ms failure to furnish necessary information, or to furnish the required title, or evidence or history thereof, the vendor’s repudiation, or statements or acts of the vendor amounting to a waiver of exercise of the option at the time stated in the option.”
In 157 A.L.R. p. 1311, there is an annotation entitled: “When optionee’s delay in exercising option excused”; and in discussing repudiation the holdings are summarized :
“It is a general rule that where the exercise of an option contemplates tender of the purchase price as a part of the acceptance, repudiation of the contract by the optionor, in the face of readiness, willingness, and ability to conform on the part of the optionee, excuses tender during the time limited, and entitles the latter to all available remedies, including specific performance . . .
“It is to be observed, in cases involving option contracts which require a tender as part of an indication of acceptance, in order to exercise an option to purchase, that even though the optionee may be excused from making a timely tender by reason of repudiation of the contract by the optionor, he must, under the familiar rule of contracts relating to offer and acceptance, in order to establish any equitable contractual relations with the latter, indicate to him definitely an acceptance and willingness to proceed with the contemplated transaction.”
The facts in the case at bar show that Hill did nothing to excuse a tender. He was anxious at all times to sell the property for $21,300.00; and so testified. He admitted signing the option deed, but claimed that there was no consideration, and that Russell was holding the option until April 1, 1963, on the hope of turning the property at a profit. Hill wanted the option terminated so that he could speedily sell the property. Under such a factual situation what was the burden resting on Bus-sell? To definitely accept the option and to make a tender within the time stated in the written instrument. When Bussell filed his answer herein—as previously copied in full—he merely made a general denial. In his testimony he never at any time said that he had exercised, or intended to exercise, the option. The point was made in the Chancery Court that Bussell had never made any tender. Hill repeatedly testified that he wanted to sell the property for $21,300.00, as stated in the option deed, but did not want to delay the matter. Yet in the face of all such testimony, Bussell never stated that he wanted to exercise, or intended to exercise, the option and make the payment. Certainly he made no tender. So whatever right—if any—he may have originally held under the option, had expired before the entry of the decree.
Affirmed.
The instrument states that it was prepared by Tommy H. Russell. It was recorded in the Office of the Circuit Clerk on April 4, 1962. Both the instrument and acknowledgment leave the day blank. We copy the full instrument:
“OPTION DEED.
“FOR AND IN CONSIDERATION of the sum of One Dollar, to me in hand paid, the receipt of which is hereby acknowledged, and the undertaking of Tommy H. Russell to pay Walter Hill and Shirley Hill the sum of $21,300 (Twenty-one thousand three hundred Dol lars), on or before the 1st day of April, 1963, we hereby grant, bargain, sell and convey unto the said Tommy H. Russell and to his heirs, successors and assigns, upon the conditions hereinafter written, the following described land, situated in Pulaski County, State of Arkansas, to-wit:
“Lot Seven (7), Block Four (4), Baums Re-subdivision to the City of North Little Rock, Arkansas.
“If said Tommy H. Russell shall fail to pay the sum hereinbefore named within the times above set forth, this conveyance shall be void, and all rights and liabilities of either party thereunder shall cease, and said land shall revert to us without any reconveyance from the said Tommy H. Russell. “And I, Shirley Hill, wife of said Walter Hill, hereby release and relinquish unto the said grantee all my right of dower in said land.
“WITNESS our hands this ____________day of April, 1962.
“/s/ Walter Hill
‘7s/ Shirley Hill.”
To these could be added Duclos v. Turner, 204 Ark. 1000, 166 S. W. 2d 251; and Kelley v. Coldren, 226 Ark. 266, 290 S. W. 2d 424.
The appellees insist that the Wallace Realty Company might have claimed that the dismissal of its lawsuit against the Hills was a valuable consideration for an option to Wallace Realty Company, but that Russell, as attorney for the Wallace Realty Company, cannot so claim. | [
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E. DeMatt Henderson, Special Associate Justice.
This appeal is a sequel to the case of Aldridge & Stroud, Inc. v. American-Canadian Oil & Drilling Corp., 235 Ark. 8, 357 S. W. 2d 8, and reference is made to such former opinion for certain of the basic facts involved in this appeal. Upon the remand required by that decision, Ur. D. D. Panich and the law firm of Mehaffy, Smith & Williams (who jointly will bo designated The Attorneys) petitioned the Chancery Court for allowance of attorneys’ fees and expenses incident to their representation of appellant, American-Canadian. William T. Foran and Mrs. Kay Van, the parties whose claims to the oil properties were sustained in onr former opinion, resisted such petition by respectively filing a Response and a Brief in Opposition; and appellant filed an extensive answer denying the propriety of any fee.
Following hearings held on July 9 and November 27, 1962, the Chancellor on December 13, 1962 entered a comprehensive decree which again fully adjudicated the rights of the nine separate parties to this complex litigation; and in addition granted The Attorneys’ petition and fixed their fee at $30,000.00 for services rendered appellant, and awarded Aldridge & Stroud judgment on its note (which our former decision held valid) in the sum of $89,842.50, based upon principal of $75,000 plus accrued interest and an award of $7,500 for attorneys’ fees. Only American-Canadian has appealed and for reversal urges that The Attorneys should be denied any fees because they represented conflicting interests in appearing as solicitors for both appellant, as the maker of the note, and Aldridge & Stroud, as its holder, and further that the award of attorneys ’ fees to Aldridge & Stroud was violative of public policy. Appellant does not now question the amount of either of the fees awarded, hut asserts it was error to award any fees.
The primary question for determination is whether The Attorneys did, either in fact or as a matter of law, represent conflicting interests by acting in their dual capacity as attorneys for appellant and Aldridge & Stroud, for if such were the case we would unhesitatingly hold that they thereby forfeited all rights to any compensation. No rule of law is more firmly established than that—“A fiduciary relationship exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in utmost good faith.” Norfleet v. Stewart, 180 Ark. 161, 20 S. W. (2) 868. This high fiduciary relationship positively precludes attorneys from representing conflicting interests as was well stated in Silbiger v. Prudence Bonds Corporation, 180 Fed. (2) 917, where Judge Learned Hand observed: ‘ ‘ Certainly by the beginning of the Seventeenth. Century it had become a commonplace that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors. Nor will the court hear him urge, or let him prove, that in fact the conflict of his loyalties has had no influence upon his conduct; the prohibition is absolute and the consequence is a forfeiture of all pay.”
This Court in Norfleet, supra, quoted with approval from Baker v. Humphrey, 101 U. S. 494, where it was said, “Courts of Justice can best serve both the public and the profession alike by applying firmly upon all proper occasions the salutary rules which have been established for their government in doing the business of their clients.” Being mindful of these commendable and indeed essential rules and the duty of courts firmly to enforce them we have reached the conclusion that in this case The Attorneys did not represent conflicting interests.
There áre undoubtedly situations where the active practicing attorney may properly appear for more than a single client without in any manner being placed in a position of divided loyalty, or be exposed to the temptation to conciliate rather than vigorously espouse the rights of the clients he represents. This is particularly true of litigation not strictly inter partes such as probate proceedings, corporate reorganizations, bills of inter-pleader, and indeed litigation of this very type which was so accurately characterized in our former opinion as a “free-for-all receivership.” In Deupree v. Garnett, 277 P. 2d 168 the Oklahoma court quoted with approval from 7 CJS, Attorney and Client, Section 47, as follows: ‘‘ However, it is not inconsistent with the status or office of attorney that he represents different interests which are not actually adverse in the sense that they conflict or are hostile. Mere possibility that different interests represented by an attorney might develop a conflict is not sufficient to disqualify him.”
This Court has twice recognized that in actions on notes an attorney does not, as a matter of law, represent conflicting interest by acting for both the holder and the maker of a note who admits the validity of the obligation. In the early case of Wassell v. Reardon, 11 Ark. 705, the defendant maker gave to plaintiff’s attorney a power to confess judgment and the resulting judgment was upheld. Again in Houpt v. Bohl, 71 Ark. 330, 75 S. W. 470. the defendants authorized plaintiffs’ attorney to waive service of summons and enter their appearance and consent to judgment which this Court then sustained. So it cannot be held, as a matter of law, that The Attorneys in this case had a conflict of interest simply because they represented both appellant as maker and Aldridge & Stroud as holder of the note.
In determining whether, in fact, there was a conflict of interest we have tested the dual representation against the conduct prescribed by the Canons of Professional Ethics of The American Bar Association, which we adopted April 24, 1939, the applicable Canon being No. 6 which specifies:
“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”
Adapting this Canon to the situation under review, the question is presented:
Did The Attorneys represent conflicting interests when as attorneys for Aldridge & Stroud it was their duty to' contend that the note it held was valid, while their duty as attorneys for American-Canadian required them to oppose such contention?
To decide this important question it is necessary to refer to certain facts reflected by the record filed herein on the former appeal. If we could not do so the present appeal would necessaidly have to be summarily dismissed without any consideration of the merits of appellant’s contentions. Aside from formal portions and matters not relating to the question of conflict of interest, the transcript filed with this present appeal contains only The Attorneys Petition for Pee, the appellant’s Answer denying liability, and the Response to said Answer, none of such pleadings being verified; and the decree of the learned Chancellor which recites that the lower court considered in reaching its decision not only the pleadings and trial briefs filed but also “the evidence adduced on behalf of the parties.” Appellant not having included such evidence in the present record before us, we would be required to affirm under the well established rule that requires affirmance in such a situation, unless there be error reflected on the face of the record, and, as we have determined, no such apparent error appears.
While routinely all appeals are assigned different numbers by our Clerk, the decree now appealed from was entered in the same numbered case below; that portion of the decrees allowing the Aldriclgo-Stroud intervention was in obedience to our mandate in the former appeal; and on this present appeal in this same cause we need not close our eyes to what was filed in this Court in the prior appeal since “the former transcript is still before us, and the Court takes notice of its contents.” Gans v. Holland 37 Ark. 483; Stueart Wholesale Grocery v. N. Sauer Milling Co. 201 Ark. 1185, reported only in 143 S. W. (2) 546. Rules of Supreme Court No. NV1.
"We thus can proceed to examine the true relationship which existed between appellant and Aldridge & Stroud in the proceeding below in which The Attorneys represented both these parties. The Attorneys representation of appellant continued even after Mr. Ranich received a letter of discharge dated July 9, 1960, which was promptly reported to the Court, and at the start of the actual trial of September 13, 1960, it was announced in open court, with appellant’s President present, that the late Mr. J. Hugh Wharton was also now associated with The Attorneys as counsel for appellant. It is interesting to note that Mr. Wharton filed briefs on the first appeal for both appellant and the intervenor, Mrs. Kay Van, who claimed and ivas awarded an interest in appellant’s properties and noting his dual employment in his brief stated: ‘ ‘ There ivas no conflict of interest between American-Canadian and Mrs. Kay Van, as a matter of fact it was understood that the corporation ivas justly indebted to Mrs. Van and wanted her to recover her moneys.” Mr. Wharton, appellant’s former attorney, succinctly stated The Attorneys position here.
It is clear that at all stages appellant has concurred in and actively supported the contention Aldridge & Stroud made in its Intervention that the note it held was a just claim. In a deposition taken February 25, 1960, when questioned by attorneys desiring to invalidate the note, appellant’s President, Mr. T. E. Robertson, testified that the execution of the note ivas duly authorized by appropriate corporate action, was supported by a true consideration, and constituted a valid, binding and enforceable obligation; and in this he was corroborated by the deposition of appellant’s Secretary. At the trial on October 25, 1960, when called to the stand and examined closely by several adversary attorneys also desiring to upset the note, Robertson reaffirmed his position that the note was valid in every respect.
The only persons who at any time asserted any contentions opposed to those of Aldridge & Stroud were the various other parties no longer involved in this litigation, such as Crabtree, Foran, Nielson, Mrs. Van and Mrs. Roberts, whose interests in defeating the note and thereby enhancing the value of their claims were real, and whose opposition ivas genuine and vigorous. These rival claimants to appellant’s property all asserted that the note ivas invalid; but they, and only they, opposed the allowance of -the Intervention of Aldridge & Stroud, while appellant supported it.
Indeed, these rival claimants even intimated that appellant’s President had joined forces with Mr. Stroud, a director of appellant, and President of Aldridge & Stroud, to create a fictitious indebtedness to their detriment. The Chancellor tacitly agreed and disallowed the note for want of consideration and on the former appeal we reversed on the basis of appellant’s own testimony “that the note and assignment were legal and valid in every respect” as contended by Aldridge & Stroud.
Appellant relies principally upon Strong v. International Building, Loan & Investment Union (1889) 183 Ill. 97, 55 N. E. 675, and asserts in its brief that such case deals “with this same problem;” but there is vital distinction between that case and the one at bar. In Strong the attorney for the court appointed receiver also represented the Union in receivership, and the Illinois court pointed out that Strong admitted in his testimony, “that the Union was antagonistic to the receivership.” This, of course, created a true case of conflicting 'interests and denial of any fee was proper.
In this case at no time since Aldridge & Stroud first presented their claim through an Intervention filed by The Attorneys on July 11, 1957, did appellant become antagonistic to the allowance of such claim; but in stark contrast The Attorneys bottomed their case upon appellant’s support of their contentions. As distinguished from the assertion of adverse contentions The Attorneys two clients testified in harmony. With such harmony, mutuality and unity characterizing the positions of their two clients we have no difficulty in deciding that The Attorneys never encountered any conflict in the duties owed to either.
The record further reveals sufficient facts to justify affirmance upon the ground that appellant by long acquiescence, with knowledge of the dual employment, waived any right to object (see 52 A.L.E. (2) at 1268) ; but we prefer to base our affirmance of the fee award for their representation of appellant upon the specific holding that The Attorneys did not represent conflicting interests since it never became their duty on behalf of Aldridge & Stroud to contend for that which duty to appellant required them to oppose.
Appellant also asserts that the trial court erred in awarding attorneys’ fee in favor of Aldridge & Stroud as authorized by the terms of its note. The basis for this contention as stated by appellant is that since the attorney represented conflicting interests it would be ‘ ‘ against public policy for them to be awarded a fee to be paid from the pocket of American-Canaclian. ”
What we have held with regard to the alleged conflict of interest leaves for consideration only the question as to whether the allowance of a fee to the note holder in this instance violates some “public policy.” In their brief appellant states: ‘ ‘ Counsel for appellant have been unable to find a case in point, but sound logic would dictate that the law should be such ...”
The maker was involved in a New York bankruptcy proceeding, had no assets other than the properties involved in this suit, and the only conceivable way the holder could hope to collect was to perfect its claim to a lien upon the properties in the “free-for-all receivership” in the Chancery Court. To clo this Aldridge & Stroud had to employ attorneys, and we have held that the selection of the attorneys involved was proper. Although the attorneys had the cooperation of the maker they did not have smooth sailing. Other claimants to the properties aggressively opposed their claim, the Chancellor denied it, and they finally prevailed only by successfully prosecuting an appeal to this Court.
Our holding in the first opinion that the note and its supporting assignment or mortgage were enforceable obligations becomes the law of the case. Meyers v. Meyers, 214 Ark., 273, 216 S. W. (2d) 54. The provision of the note for an award of attorneys ’ fees not exceeding ten per cent, cannot be seprated from its other provisions and is now enforceable in Arkansas. Ark. Stats. Ann. 68-910. We can perceive of no public policy which precludes Aldridge & Stroud from obtaining the benefit of this provision contained in a note which the law of the case holds valid, when the realities of the case required they be represented by attorneys to enforce their claim.
Appellant does not question the amount awarded; and in our opinion cannot on this appeal for the first time question the validity of the award. When the case was remanded with directions to allow the note as a valid claim the only action required of the Chancellor was to compute the amount of the Aldridge & Stroud judgment and then enter an appropriate decree. It is apparent that appellant did not question before the Chancellor the inclusion of an attorney's fee in such computations.
When following remand The Attorneys petitioned for a fee for services rendered to appellant it promptly filed a detailed and extensive answer and protest; but in such lengthy pleading no objection is made, even indirectly, to the inclusion of an attorney’s fee in the Aldridge & Stroud judgment. Nor was any pleading ever filed directly objecting to an attorney’s fee to Aldridge & Stroud. The proceedings at the two hearings held prior to the entrance of the questioned decree are not shown. All that the record before us contains relating to the Aldridge & Stroud judgment is (a) the intervention with its prayer for attorney’s fees, (b) the mandate which issued upon the former appeal, (c) and the decree now under review. The record is thus completely silent as to any objection to the $7,500.00 fee having been made at any time before the lower court.
Conversely the record does strongly indicate that appellant actually consented and initially agreed to. the attorney’s fee included in the Aldridge & Stroud judgment.
Appellant has designated as part of the record on appeal the Chancellor’s docket entry made contemporaneously with entrance of the decree, and such appears at page 26-A of the transcript and reads, “Decree as per precept filed this day by consent of all parties, except, American-Canadian Oil & Drilling Corp. excepts to any amount of attorney fee to Mohaffy, Smith & Williams and D. D. Panich over and above the amount of $15,-000.00. And notice of appeal given as to the balance of the fee in the sum of $15,000.00.” (Italics added). The first notice of appeal filed January 4, 1963 corroborates tlie docket, entry and did not question tlie Aldridge & Stroud judgment. By an amended notice of appeal, timely filed by different attorneys, appellant appealed generally from the decree of December 13, 1962 and in the designation of points to be relied upon for the first time assert error in the inclusion of attorneys’ fees in the Aldridge & Stroud judgment. In view of the cases concerning the efficacy of docket entries, we cannot conclusively say that the Aldridge & Stroud judgment was entered by consent, in which case it would not be appeal-able, since the decree itself does not so recite. Herrod v. Larkins, 183 Ark. 509, 36 S. W. (2d) 667; City of Monticello v. Kimbro, 206 Ark. 503, 176 S. W. (2d) 152; Pittsburg & St. Louis R.R. Co. v. Johnson, 93 N.E. 683.
We do conclude that there being nothing in the record filed in this Court to show that the issue of the allowance of attorneys’ fees to Aldridge & Stroud was raised in, or considered by, the trial court, this Court Constitutionally vested only with appellate and supervisory jurisdiction cannot consider such issue for the first time on appeal. Missouri Pacific R.R. Co. v. Myers Commission Co., 196 Ark. 976, 120 S. W. (2) 693.
The decree of the lower court is affirmed.
Ward, J. not participating.
George Bose Smith, J., dissents in part. | [
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Ed. F. McFaddin, Associate Justice.
This is second appeal in this case. The opinions on first appeal may be found in Watkins v. Johnson, 234 Ark. 929, 235 Ark. (Adv. Sh.) 85, 356 S. W. 2d 655. The .relationship of the parties, the rival claims, and the issues, are all stated in the opinion on the first appeal wherein we reversed the Trial Court and remanded the cause for further proceedings on the issues of co-tenancy and limitations, as regards an undivided one-sixth interest in the 120 acres of land involved.
When our mandate was filed in the Trial Court as a result of the first appeal, the Watkins heirs- filed an amendment to their complaint, which amendment prayed, inter alia: . . ■ "
“. . . that if the Court finds that the deeds from Plaintiffs to W. H. Johnson are valid, that this Court find and decree that they are co-tenants with W. H. Johnson, his heirs and assigns and that all of said Defendants he ordered to account to Plaintiffs for one-sixth (l/6th) interest of rents and profits from said lands; that this Court decree that Plaintiffs are owners in fee simple in one-sixth (l/6th) of the lands herein described. Plaintiffs pray for all their cost and for all other proper relief in Law and Equity to which these Plaintiffs áre entitled. ”
A voluminous record is before us. The Trial Court made definite findings of fact and conclusions of law, a summation of which is: (a) that the deeds from the Watkins heirs to W. H. Johnson were valid; and (h) that even if W. H. Johnson might have been a co-tenant with the Watkins heirs for the one-sixth interest in the dispute, nevertheless the Watkins heirs are barred loy limitations from a recovery against the present owner, A. W. Johnson.
I. Forgery. The evidence shows that in the period from 1910 to 1924, W. H. Johnson, the maternal uncle of the children of Lewis L. Watkins, received a deed from all of the Watkins heirs and went into possession of the lands. The Trial Court found these deeds to be valid; and that finding is correct. The original deeds are before us: we have examined them, and we conclude that the Trial Court was correct in sustaining the deeds as valid.
II. Statute Of Limitation. Even conceding that W. H. Johnson became a co-tenant with the said Watkins heirs for the 1/6 interest in dispute, nevertheless the Watkins heirs are barred by limitation against the present owner, A. W. Johnson. On August 5, 1943, W. H. Johnson sold the lands here involved, and other lands, to his son, A. W. Johnson, for a valid consideration recited to be $5,000.00. A general warranty deed from W. II. Johnson to A. W. Johnson was .recorded on August 5, 1943, describing the entire 120 acres here involved. The evidence further establishes: that A. W. Johnson took possession of all of said lands in 1943 and has been in possession thereof ever since; that the lands were and at all times have continued to be fenced, with part in crops and part in pasture; that A. W. Johnson has paid taxes each year on the lands, and has had tenants on the lands at all times since 1943; and that A. W. Johnson has been in open, notorious, hostile, adverse, exclusive, and continuous possession of the entire 120 acres at all times since August 5, 1943, and has pleaded the 7-year statute of limitation (Ark. Stat. Ann. §37-101 [Eepl. 1962]) against the Watkins heirs in this case.
The plea of limitation is supported by abundant evidence and is determinative of the present appeal. In a long line of cases we have held when a co-tenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under such deed, then such deed constitutes color of title, and such entry commences the running of limitation in favor of the grantee and against all the other co-tenants of the grantor. Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537; Jackson v. Cole, 146 Ark. 565, 226 S. W. 513; Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521; Ulrich v. Coleman, 218 Ark. 236, 235 S. W. 2d 868. Even though A. W. Johnson was a first cousin of the Watkins children, nevertheless A. W. Johnson was a “stranger to the title” when he received the deed from W. H. Johnson in 1943, because he was not a privy of the Watkins heirs. Rye v. Bauman, 231 Ark. 278, 329 S. W. 2d 161; 83 C.J.S. page 109; Succession of Baker (La.), 55 So. 714. The appellants did not file the present action until 1960; so from 1943 to 1960 A. W. Johnson had far more than seven years of unquestioned adverse possession of the land.
The decree of the Chancery Court in favor of A. W. Johnson is in all things affirmed.
This result was true because appellants, claiming to be the five heirs of L. L. Watkins, had each signed a deed to W. H. Johnson stating that such deed conveyed the grantor’s “undivided one-sixth interest” in the property; and the total of the five deeds, under the appellant’s theory, would be five-sixths of the entire fee. Since those deeds were beyond attack (as held in the first appeal), there remained only an undivided one-sixth interest for further litigation, ás here involved. It is conceded in the briefs that each deed conveyed only an undivided one-sixth interest in the lands, and we so treat the case; but our investigation of the original deeds in the record now before us shows other language in some of the deeds which other language might convey all of the grantors’ interest, regardless of the fraction stated. Furthermore, in the deed of E. G. Watkins to W. H. Johnson, the description is: “All of our undivided interest in and to the following lands” (describing them); no fractional interest being stated in that deed. But throughout this opinion we treat the case as though each deed to W. H. Johnson conveyed only a one-sixth interest in the land.
It will be recalled from the opinion on the first appeal that Lewis L. Watkins had five children; that his widow, Jennie, married Mr. Woods; and that Oliver Woods was a child of that marriage. No explanation is offered as to why it was thought by W. H. Johnson that Oliver Woods had a l/6th interest in the 120 acres of land here involved, since such lands were owned by Lewis L. Watkins; but the explanation may be found in the fact that this 120 acres of land was listed as an asset of Oliver Woods’ mother, Mrs. Jennie Woods, as disclosed by the inventory of her estate, which is in the record. | [
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Carleton Harris, Chief Justice.
Appellant, J. W. McLeod, is an individual d/b/a Line Service Company in Lamar, Missouri. Since 1951, he has'been engaged in the business of clearing rights of way and keeping them clear of brush thereafter for companies which build and use transmission lines, such as electric power and telephone companies. Darrell E. Meyer, appellee herein, was employed by appellant as an area manager in 1960, and the parties entered into a written contract of employment. This contract, inter alia, contained the following provision:
“Employee agrees that he will not for a period of five years after the termination of his employment with the company for any reason, either on his part or on the part of the company, engage in any way directly or indi rectly as an owner, agent, or employee in any business competitive with the company’s business nor solicit or in any manner work for or assist any competitive business in the states of Missouri, Kansas, Oklahoma and Arkansas. ’ ’
Meyer’s employment was terminated by appellant as of November 25, 1962. Subsequently, appellee instituted suit in the Chancery Court of Sebastian County (Fort Smith District) against appellant wherein he sought to recover salary and expenses alleged to be due under the contract, and also sought a declaratory judgment invalidating the contractual provision which denied Meyer, after termination of employment, the right to participate or engage in a similar trade or business for a period of five years in the four states heretofore mentioned.
Appellant filed an answer, admitting that appellee was due the sum of $825.06 for salary and expenses, and also a counter claim, seeking an order directing Meyer to deliver to appellant a certain automobile and other property which McLeod contended belonged to him. Appellant contended that the aforementioned restraint agreement was fair and reasonable, and the court was asked to enjoin and restrain appellee from violating this provision of the contract. After the filing of certain other pleadings, the cause proceeded to trial. On March 6, 1963, the court entered its decree, finding, inter alia, that Meyer should recover from McLeod the sum of $1,224.81 as salary and expenses due; that the contract provided that upon termination of employment the automobile should be immediately returned to appellant; that the provision wherein Meyer agreed not to engage in a competitive business (set out in Paragraph One) for a period of five years in the four states mentioned, “is unreasonable in that it encompasses too large an area and an unreasonable length of time, and is therefore void. ’ ’ From the decree so entered, appellant brings this appeal. While the notice of appeal recites that the entire decree is being appealed from, the appeal actually relates only to the Chancellor’s action in declaring the aforementioned provision in the employment contract unreasonable and void. Appellant asserts that the employment contract was reasonable, and insists that the court should have ordered specific performance of the agreement by appellee.
There are no statutes in Arkansas governing contractual restraint provisions as to area or length of time, though the question has been raised in several cases before this court. These provisions are sometimes found in two types of contracts. One type is where an established business is sold, and the seller agrees not to enter into the same business for a certain period of time, or in a particular area. The other type relates to contracts between employers and employees, as in the present instance. An analysis of Arkansas cases reveal that our court has been more prone to uphold restrictive clauses under the former type of agreement than under the latter. In American Excelsior Laundry Co. v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598, we pointed out the distinction between the two types of agreement. However, our cases hold (in each category) that Avhether a restraint provision is reasonable or unreasonable (and thus valid or invalid), is a matter to be determined under the particular circumstances involved.
Appellant, in his brief, relies mainly on our holding-in Orkin Exterminating Co. of Arkansas v. Murrell, 212 Ark. 449, 206 S. W. 2d 185. There, Murrell agreed that he would not directly or indirectly, “for himself or in behalf of any other person or corporation” engage in the exterminating, fumigating, or termite control service during the term of his employment or for one year following the termination of the agreement in an area embracing part of the state of Arkansas. Murrell, under his assigned duties, had access to all records, customers’ listings, and credit ratings. Trade secrets, were involved, as Orkin maintained a research department wherein the nature and habits of insects and rodents were ascertained, and chemicals and compounds were prepared to be used in their destruction without danger to human beings or damage to furniture, woodwork, etc. Chemicals were mixed and formulae reported. The contract bound the parties to continue the employer-employee relationship for a specified period of time. Murrell subsequently resigned and entered the pest control business for himself in violation of his agreement. This court held that the contract between the parties was reasonable and enforceable.
The circumstances in the instant case are quite dissimilar to the above recited facts. For instance, Murrell voluntarily resigned to enter competitive business. Here, Meyer was fired. Further, under the Orkin contract, Murrell received the protection of a definite period of employment, while employment in the case before us could be terminated at any time upon 30 days notice. Moreover, Murrell did, by virtue of his position and the nature of his employment, receive valuable trade secrets, as well as customer listings and individual credit ratings, but these circumstances do not exist in the instant litigation. In the first place, as heretofore set out, only a limited number of concerns could use the service offered by appellant. Certainly, any individual by simply looking in the telephone directory, could locate the names of electric companies, telephone companies, or telegraph companies, and then easily ascertain the person in charge of the clearing of foliage between power lines, and in rights of way. Of course, in his work, Meyer learned the difference between light, medium, and heavy foliage, and it was necessary that he learn about spans of brush and how to measure density, but there was no special or secret process used in making this determination. The knowledge of how to bid for á job was gained by Meyer, but the information acquired here would hardly seem to come under the classification of “secret formulas;” rather, it was simply the knowledge which one acquires by experience. Actually, it does not appear that any se cret formula was used at all.by appellant. Chemicals used were sold on the open market, and in some instances the customers furnished their own chemicals. The substance would be mixed with water or diesel oil, and these mixtures were prepared by the foreman of the particular crew doing the work, rather than by appellee.
It is permissible for one to use the experience and knowledge gained during a period of employment. The experience and knowledge thus acquired as an employee does not become the property of the employer. Witmer v. Arkansas Dailies, Inc., 202 Ark. 470, 151 S. W. 2d 971.
Be that as it may, the main difference between the facts in Orhin and the case before us, and the circumstances that are most persuasive to the conclusion reached, relate to the period of time and the area covered in the restraint clause. In Orhin the contract provided that Murrell would not engage in the pest control business for one year following termination of his employment, and the area covered was a part of one state. Here, the contract provided that Meyer would not engage in a competitive business for five years, and the area covered is four states. This case bears some similarity to American Excelsior Laundry Co. v. Derrisseaux, supra. In that case, Derrisseaux entered into a contract with the laundry company to solicit laundry and dry-cleaning for appellant’s plant, and agreed that he would not at any time within five years after the termination of the agreement, engage in the laundry and dry-cleaning business in the territory assigned to him under his contract. The term of employment was at will. Derrisseaux worked under the contract for a little over three months and then quit, engaging in business for himself, soliciting and delivering laundry and dry-cleaning over the same route. The laundry company instituted suit, and on trial, the court held the restraint provision of the contract void. On appeal, we affirmed the trial court. It might be mentioned, as far as area is concerned, that case involved only a rural route territory out of Pine Bluff. In McCumber v. Federated Mutual Implement & Hdw. Ins. Co., 230 Ark. 13, 320 S. W. 2d 637, we held that a contract restraining competition for two years in a nine-county area was void as an unreasonable restraint of trade.
It is suggested by appellant, that if the court feels that the restriction of 5 years is too long a period, ‘ ‘ there would be no reason why the protection of the decree could not be for a shorter period of time.” We do not agree, for courts will not vary the terms of a written agreement. To do so, would simply be to make a new contract between the parties, and we have consistently held that this will not be done. Refrigeration Discount Corp. v. Haskew, 194 Ark. 549, 108 S. W. 2d 908; Roth v. Prewitt, 225 Ark. 467, 283 S. W. 2d 155.
It is apparent, under the facts in this case, that the restraint clause is much broader than that in Derrisseaux or McGumber, and we agree with the chancellor that the provision in question is “unreasonable in that it encompasses too large an area and an unreasonable length of time, and is therefore void.”
Affirmed.
This automobile had been attached, and was being held by the Sheriff of Sebastian County. The court ordered appellee to bear the costs of storage to date of judgment, and ordered appellant to bear the cost from the date of judgment until same was satisfied.
See Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S. W. 293 (1909); Hampton v. Caldwell, 95 Ark. 387, 129 S. W. 816; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; McClure v. Young, 193 Ark. 188, 98 S. W. 2d 877. | [
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En. F. McFaddin, Associate Justice.
The appellant is Grace Chronister, administratrix of the estate of AY. J. Chronister, deceased; and the appellee is Katheryn B. Custer, Business Manager and Administrator of the Pulaski County Hospital; and this appeal involves a claim allowed by the Probate Court of Pulaski County in favor of the appellee against the Chronister estate. In proper time the appellee filed the following claim:
“I, Kathryn Custer, Business Manager and Administrator of the Pulaski County Hospital, Little Rock, Arkansas, on behalf of the County of Pulaski in the State of Arkansas, do solemnly swear that the County of Pulaski is entitled to claim the sum of $320.00 against the Estate of AY. J. Chronister, and that the said claim arises as follows:
“That the deceased, AY. J. Chronister, was appointed guardian of the person and estate of Eunice Vaughn, Incompetent, in the Probate Court of Pope County, Arkansas, and that the said guardianship has now been terminated. That the said W. J. Chronister filed in the said guardianship proceedings an accounting stating certain assets of the said Eunice Vaughn, and stating, among other things, that no assets existed other than those shown in the said accounting. That the County of Pulaski filed a claim in the said guardianship proceeding-praying that it be allowed to claim against the estate for money expended by the said County for the care and custody of the said incompetent in the Pulaski County Hospital, which claim was allowed. That since the time of the termination of the said guardianship the said incompetent has remained in Pulaski County Hospital, and that the County of Pulaski is entitled to claim against any assets of the said incompetent for her care, custody and maintenance. That on March 21, 1961, it was learned that after the termination of the guardianship of the incompetent, Eunice Vaughn, four checks in the total amount of $320.00 were received by W. J. Chronister and cashed by him, as shown by Exhibit ‘A’ attached hereto; that the County of Pulaski is entitled to be compensated for the care and custody of the said Eunice Vaughn, and that the said money so received by W. J. Chronister should have been paid to the County of Pulaski for use on behalf of the said incompetent or the guardianship in Pope County reopened and a supplemental accounting filed therein, neither, of which was done. “'Wherefore Katheryn Custer prays that her claim on behalf of Pulaski County be allowed in the amount of $320.00, and that this Court order payments of the above sum to the Pulaski County Hospital, /s/ Katheryn Custer.”
From the allowance of the claim there is this appeal presenting several points of which we discuss only two, since they are decisive.
I. The Chronister Estate was not indebted to Pulaski County. Eunice Vaughn was indebted to Pulaski County, but the ■ Chronister estate was not so indebted; so the claim filed by Katheryn Custer for Pulaski County was entirely improper. The Chronister estate might or might not have been indebted to Eunice Vaughn, that could only have been determined if a claim had been filed for Eunice Vaughn. But Pulaski County could not file a claim, such as this one, against the Chronister estate as though the claim were a garnishment proceeding. The estate of Eunice Vaughn filed no claim against the Chronister estate, nor did the estate of Eunice Vaughn make any assignment of any claim to Pulaski County. Since the Chronister estate did not owe anything to Pulaski County, and since no assignment of the claim of Eunice Vaughn to Pulaski County was shown, it necessarily follows that the Court was in error in allowing the claim of Pulaski County against the Chronister estate.
II. The holding in Jones v. Arkansas Farmers’ Assn., 232 Ark. 186, 334 S. W. 2d 887, affords the appellee no support. Before the administratrix of the Chronister estate denied the Pulaski County claim, the statute of non-claims had run against any claim that the estate of Eunice Vaughn might have filed. It was therefore insisted below, and is urged here, that such failure of a more prompt denial amounted to a waiver by the administratrix of the Chronister estate to resist the present claim: that is, the failure to deny the present claim before the statute of non-claims ran against any claim that Eunice Vaughn might have urged, constituted a waiver of the right to resist the present claim. We see no merit in appellee’s position. In the Jones case it was pointed out that a party waives objection to the form in which a claim is filed if the disapprovel of the claim be not made until after the statute of non-claims had run. That case does not stand for the proposition that if a claim is filed in behalf of the wrong claimant then the estate against which the claim is filed becomes liable merely because such claim was not denied until after the expiration of the time in which the proper claimant could have filed a claim.
Since the claim cannot be considered as a claim filed in behalf of Eunice Vaughn, and since the Chronister estate is not indebted to Pulaski County, the claim here allowed must be denied. The judgment is reversed and the cause remanded with directions to disallow the claim here involved. | [
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Ed. F. McFaddin, Associate Justice.
Don R. Fitzgerald died as the result of injuries he sustained in an automobile mishap on the night of December 16, 1962. He was a guest in the car being driven by Bobby Joe Allyn, appellee. The appellants, being the parents of Don R. Fitzgerald, brought this action for damages against Bobby Joe Allyn, alleging that he was guilty of willful and wanton negligence in the driving of the automobile and that such willful and wanton negligence caused the death of Don R. Fitzgerald. Trial to a jury resulted in a verdict and judgment for the appellee; and on this appeal appellants urge these points:
1. The jury’s finding is against the uncontradicted evidence and every legitimate inference deducible therefrom.
2. There is no substantial evidence to support the jury’s verdict.
3. The verdict is against incontrovertible physical facts and is radically wrong.
We consider all three of these points together, as they all go to the appellants’ contention that the undisputed evidence shows that Bobby Joe Allyn was guilty of willful and wanton negligence.
The evidence established: that Don R. Fitzgerald was 29 years of age and lived alone in Clay County, Arkansas; that on the night of December 16, 1962 he went to a tavern in Missouri several miles from his home and consumed some beer; that when midnight closing hour arrived Fitzgerald asked the defendant, Bobby Joe Allyn (aged 25), who had also been drinking beer, to drive Fitzgerald to his home in Allyn’s car; that with a 6-pack of beer the two left the tavern in Allyn’s car and drove to Fitzgerald’s home several miles aivay; that when they arrived at Fitzgerald’s home he decided he wanted to go to a tourist court a few miles away, and Allyn drove him there; that Fitzgerald then decided he would return to his home, and Allyn started with him on the return drive; that enroute the car had a flat tire and the two men changed the tire; that they then reentered the car and while proceeding to Fitzgerald’s home, Allyn drove the car into a bridge abutment with such force and speed as to turn the car around; and that Fitzgerald was killed in the collision with the bridge. Shortly after the collision Allyn voluntarily submitted to an alcoholic blood level test, which disclosed that Allyn was intoxicated.
The plaintiffs insisted, inter alia, that Allyn was guilty of willful and wanton negligence in that he was driving while intoxicated and was driving in a reckless manner and at an excessive speed. The defendant insisted, inter alia: (a) that he was not guilty of willful and wanton negligence; (b) that Fitzgerald assumed the risk of defendant’s driving; (c) that Fitzgerald ivas guilty of contributory negligence; and (d) that the parties were on a joint mission. The status of Fitzgerald as a guest in the Allyn car appears to have been conceded, so that the burden was on the plaintiffs to establish that the defendant was guilty of willful and wanton negligence in the operation of the vehicle. Ark. Stat. Ann. §75-913 and §75-915 (Repl. 1957).
The case was tried to a jury and the Court instructed on all applicable phases of the law, and submitted the case to the jury on a series of interrogatories designee to obtain answers on the various issues developed. The plaintiffs offered no objection to any of the instructions or interrogatories submitted. The first interrogatory was: “Do you find from a preponderance of the evidence that Bobby Allyn was guilty of willful and wanton misconduct in the operation of his vehicle which proximately caused the death of Don Fitzgerald.” The jury answered this interrogatory in the negative; and based on such answer the Trial Court rendered judgment for the defendant. From such judgment there is this appeal in which appellants claim the jury’s negative answer is against the undisputed evidence.
"We hold that a jury question was made as to whether the defendant, Allyn, was guilty of willful and wanton negligence in the operation of the automobile. Even though it was conceded that Allyn had been drinking beer to an excess and was driving the car, we cannot hold that such facts establish willful and wanton negligence as a matter of law. Allyn was in sufficient possession of his faculties to drive his car a number of miles from the tavern to the Fitzgerald home, then to the tourist court, then to work with Fitzgerald in changing a tire—all • of which occurred before the fatal collision. Furthermore, the evidence showed that immediately prior to the collision Fitzgerald told Allyn he believed there was another flat tire; and that Allyn was in the process of pulling his car to the shoulder when he hit the bridge abutment. The highway was 21 feet wide, whereas the bridge was only 18 feet wide; there were no reflectors to indicate that the abutment narrowed the traffic area; and Allyn testified that he was never travelling in excess of 55 miles per hour at any time.
To prevail on this appeal the appellants must establish that the Trial Court should have instructed the jury that Allyn was guilty of willful and wanton negligence as a matter of law even under the facts as here developed ; and we are convinced that the question of willful and wanton negligence was a jury question in this case. See Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226; Poole v. James, 231 Ark. 810, 332 S. W. 2d 833; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723; Froman v. Kelley, 196 Ark. 808, 120 S. W. 2d 164; and Stobaugh v. Hubbard, 234 Ark. 917, 355 S. W. 2d 283.
There is another and additional reason, sufficient in itself, why there -must be an affirmance of this case. Such reason is because the appellants did not request an instructed verdict on the issue of willful and wanton negligence, nor did they otherwise register in the Trial Court their dissatisfaction with the submission of the issue to the jury: there was neither a motion for new trial nor a motion non obstante veredicto. Rock-Ola Mfg. Corp. v. Farr, 226 Ark. 279, 290 S. W. 2d 2; and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306.
Affirmed.
Originally the brothers and sisters of Don R. Fitzgerald were joined as plaintiffs; but, without objection, the Court dismissed as to them, so that only Mr. and Mrs. C. C. Fitzgerald (father and mother of Don R. Fitzgerald) remained as plaintiffs.
This answer in the negative made it unnecessary. for the jury to answer any of the other interrogatories. | [
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Carretón Harris, Chief Justice.
The facts in this case are somewhat complicated. Appellant, H. W. Reed has at all times pertinent hereto been the owner of some 6.000 acres of land in Baxter County. Carl W. Lee, one of the appellees herein, is a real estate broker, living in Bentonville, Arkansas. Reed did not actually list the 6.000 acres with Lee, but did authorize the latter to sell it. Reed also had for sale 532 head of cattle. During the months of June and July, 1961, Lee and another realtor, Omar Head, of Amarillo, Texas, (also an appellee herein) arranged a transaction by which Reed would exchange his Baxter County property for a Texas Hotel owned by Grey Investment Company of Eastland, Texas, (third appellee herein). Don Pierson was President of Grey. However, Reed, a resident of Alvarado, California, desired to dispose of his non-California investments, and he, therefore, would only agree to the trade if the hotel could also be sold. Head arranged a trade of the hotel for 2.4 acres in Amarillo, Texas, owned by J. W. Bragg of Amarillo, together with a monetary payment on the part of Bragg.
On August 7, 1961, two contracts were prepared in Head’s office in Amarillo, both being dated August 8, since the 7th was a Sunday. Under the first contract, Reed agreed to trade his Baxter County land for Grey’s hotel. The contract recited that the parties had deposited $5,000.00 with realtors Lee and Head, and further provided that these brokers would receive a total commission of $10,000.00 for their services. The provision reciting that $5,000.00 had been deposited was admittedly erroneous. Under the second contract, Reed agreed to trade the newly acquired hotel to Bragg in exchange for Bragg’s 2.4 acres of land, and the sum of $130,000.00, payable in monthly payments of $780.00 each. This contract was executed by both Reed and Bragg at the time, but there is a notation on the agreement, £ £ contingent on trade with Don Pierson.” The contract between Reed and Pierson was not executed at that time; in fact, Pier-son was not present, but was represented at the meeting by Head. Reed then flew back to California, taking both contracts with him.
The next day, August 8, Reed consulted his attorney, James R. Slaybaugh, lawyer of Hayward, California, and directed him to delete the erroneous recital about the $5,000.00 payment to Lee and Head, and further instructed Slaybaugh to prepare a Supplemental Commission Agreement (hereinafter called S.C.A.), which provided that the $10,000.00 commission to be paid to Lee and Head (heretofore referred to) would only be paid when the 2.4 acres involved in the contract with Bragg had been sold at a net of $50,000 to Reed, such sale to be made within two years. Slaybaugh then inserted in the Reed-Grey contract a reference to the S.C.A. and mailed this contract and the S.C.A., both signed by Reed, to Head, directing that Head retain signed copies and re turn copies of the contracts if acceptable. In chronological order the following events then transpired:
August 10: Head called Reed with reference to the S.G.A., stating that it was unacceptable and tried to get Reed to change the agreement. Reed refused to do so. It does not appear from the conversation, however, that either party considered that the S.C.A. had been definitely or finally rejected.
August 15: Because Reed had asserted that he did not have the cash money to pay the commission at the outset, Lee called Reed and suggested that $5,000.00 of the commission might be obtained from a sale of the cattle. Reed agreed.
August 16: Reed telegraphed Lee AAdierein he confirmed the conversation by Avhich he agreed to pay $5,000.00 if the cattle should be sold for $85,000.00.
August 20: Lee obtained a firm offer from Norman Gibson, Weatherford, Texas, of $85,000.00 for the cattle.
August 24: Lee, Head, and Pierson signed the Reed-Grey contract.
August 25: Lee contracted Clayton Little, an attorney of Bentonville, Arkansas, Avho called Slaybaugh relative to Lee’s concern over the recitation that the brokers had already received $5,000.00. Lee desired to either receive the $5,000.00 or obtain an acknoA\dedgment from Reed that the amount had not been paid.
August 28: Little again called Slaybaugh, and according to his (Little) testimony, told Slaybaugh that Lee had obtained the offer of $85,000.00 from Gibson for the cattle and further advised that the S.C.A. Avas acceptable to appellees, Lee and Head, “that we had everything completed on this end.” Slaybaugh, subsequently, in a deposition, denied that he had been advised that either the Reed-Grey contract or the S.C.A. had been accepted or executed. According to his testimony, the conversation related only to clarifying the S.C.A., and its effect upon the commission terms of the Reed-Grey contract. As he stated, “All this suggested to me that there had been no action taken by his clients at that time.” In the deposition, Slaybaugh denied that he was an agent for Reed or had any authority to act for appellant in the matter.
August 29: Reed wired Little, Lee, and Pierson, withdrawing his offer to sell the Baxter County lands.
August 30: Lee and Head instituted suit against appellant, seeking judgment for $15,000.00 ($10,000.00 for the real estate transactions and $5,000.00 for the sale of the cattle).
September 20: Grey Investment Company, through its president, Don Pierson, instituted suit against appellant in the Baxter County Chancery Court, asking specific performance.
Following the filing of an answer and certain motions, the causes were consolidated for trial, and heard by the Chancellor. Thereafter, the Court made the following findings:
That the contract between Grey Investment Company and H. W. Reed was executed by all parties prior to the attempted cancellation by Appellant Reed through telegram from Reed’s attorney, dated August 29, 1961; that Grey Investment Company was entitled to specific performance of the contract; that Head and Lee had agreed to the terms of the S.C.A., and their agreement was communicated to Slaybaugh prior to the attempted cancellation of the original contract; that the S.C.A. had been modified by communication between Reed on the one hand, and Head and Lee on the other, to the extent that these appellees would receive $5,000.00 of the commission at the time of the exchange of the Baxter County property for the hotel property, and that the remaining $5,000.00 of the commission would be due upon the sale of the 2.4 acres of land in Amarillo, Texas, such sale to be made within a two-year period, and in an amount which would net Reed $50,000.00 after payment of the commission.
The court further found that Head and Lee were entitled to judgment for $5,000.00 already earned under the terms of -the contract, but that they were not entitled to a commission for the sale of the cattle, inasmuch as Reed’s agreement to pay the first $5,000.00 due (because of the sale of the Baxter County lands) was conditioned on Head and Lee securing a buyer for the cattle at the stipulated price; that these appellees did obtain such a buyer. From the decree entered embodying these findings, and directing Reed to immediately perform the contract dated August 8, 1961, appellant brings this appeal.
Appellant asserts that appellees did not agree to, or accept, the contract prior to the telegram that he caused to be sent on August 29, and, in his argument, Reed states that up until the time of the trial, no written communication, or signed copy of the Grey contract, or the S.C.A., was ever received by him. It is true that Lee and Head did not sign the S.C.A. and send it on to Reed, but they explained that this would have been futile, since the telegram was received from Slaybaugh (for Reed), revoking the offer to sell or exchange. Under the circumstances this explanation appears logical. For that matter, the terms of the S.C.A. were orally varied from time to time by the parties. Reed testified that on August 15 he had agreed that, if the cattle were sold, he would pay $5,000.00 “of it.” He explained the “it” as relating to the Grey real estate transaction:
“Of the Ten Thousand Dollars on the real estate, on the supplemental agreement, right, instead of them waiting for that $10,000.00 they would get $5,000.00 immediately and the other five if and when they sold the land in Amarillo.
Q. Then as far as you were concerned if he sold the cattle at Eighty-Five Thousand Dollars ($85,000.00) it was a completed deal then?
A. That is right, if they accepted the supplemental agreement as revised to $5,000.00.”
Pierson, Lee, and Head all testified that Pierson executed the contract on the 24th of August. Of course, Reed had already signed the contract with Grey Investment Company, along with the supplemental agreement, following his return to California, after viewing the property. Let it be borne in mind that there was no dispute between Reed and Pierson; the Pierson, or Grey Investment Company, contract was only being held up because Reed had demanded that his terms be met under the S.C.A. before the Pierson contract would become effective. In other words, the closing of all agreements was simply dependent upon Lee and Head accepting the S.C.A. The only additional requirement made by Reed (that the cattle would have to be sold if he paid the $5,000 immediately), of course, did not relate to the Grey Investment Company contract at all. Accordingly, the pertinent question in this litigation is whether Lee and Head accepted the S.C.A. Here, the testimony was in conflict. Clayton Little testified that Lee came to his office on August 25 and asked him (Little) to contact Mr. Slaybaugh, and tell the latter that Pierson had signed the contract, but that Lee was concerned over the fact that the contract recited that Reed had already paid $5,000 to this appellee. In calling Slaybaugh, Little also testified that he told the California attorney that Lee had a firm offer for the sale of the cattle. On August 28, Little again called Slaybaugh and told him that the supplemental agreement was acceptable to both Lee and Head, ‘ ‘ and that he had at that time had the firm offer or completed the cattle sale contract for $85,000.00 and I again told Mr. Slaybaugh that now that everything was worked out I still wanted him to go ahead and send the $5,000.00 as called for in the contract or to send us a wire acknowledging that it hadn’t been sent—that we had everything completed on this end.”
Little said that Slaybaugh stated that he would convey the information received from Little to Reed.
Reed testified that he called Slaybaugh and asked if he had “heard anything,” and that his lawyer replied, “No, nothing except that this other Attorney * * * had called him asking him about this Five Thousand Dollars ($5,000.00), to delete that and at that time he explained it was supposed to have been deleted at the time * * Reed stated that he then decided that “the deal is not going to go through” and he dictated the telegram advising that he was revoking the offer to sell. Slaybaugh testified that his conversation with Little related entirely to clarification of the supplemental agreement (the matter of the $5,000, heretofore mentioned). This was a question of fact, and the Chancellor accepted the testimony of Little.
Actually, Reed’s testimony in court indicates that the telegram was not actually meant to be a final and absolute revocation of the offer. The record reveals the following during the examination of Reed:
“Q. Did you receive any communication or any indication from anyone even after you sent that telegram prior to the time that you were served with notice of this lawsuit that anyone wanted to go ahead with the transaction ?
A. Not one word, if anything I thought this telegram would get some kind of answer and some hincl of action but I never heard one word and I thought it was 'water under the bridge until three or four weeks later, I don’t know, at the time it was served and I got this special delivery letter and I think it was the latter part of September. ’ ’
Appellant argues that Slaybaugh was not an agent for Reed, and that, even if Little actually notified Slaybaugh of the acceptance of the agreement, same was not binding upon Reed since appellant himself did not receive such notice from appellees or their attorney. The question of whether Slaybaugh was an agent of Reed, as that term is generally used, is not important in this litigation. Certainly, he was an agent to the extent of having authority to communicate to Reed any information given him relative to the acceptance of the contract by appellees. Such authority would be unquestioned since Reed had Slaybaugh act for him, in communicating his desires relative to the contracts from the beginning to the conclusion (Slaybaugh even sending the telegram of revocation).
One fact stands out; after all is said and done, Reed, on August 29, was in a position to receive everything that he had sought during the course of the negotiations, i.e., he was disposing of his Arkansas property; he was disposing of the Eastland Hotel property in Texas; a sale had been obtained for his cattle, which he demanded as a prerequisite to paying the $5,000.00 to the brokers immediately; he did not owe the additional $5,000.00 until the Bragg property was disposed of.
As stated at the outset, the facts in this litigation are complicated, and are very much in dispute. The Chancellor, after hearing all of the evidence made the findings previously set out. The rule that we will not disturb the Chancellor’s findings unless they are clearly against the preponderance of the evidence, is so well established as to require no citation of authority. There are some facts, presented on each side, which tend to support the position of each. We think a preponderance lies with appellees, but, in any event, we certainly cannot say that the Chancellor’s findings are against a preponderance of the evidence.
Affirmed.
Mabel C. Reed, wife of H. W. Reed, is also an appellant, hut has been treated throughout the litigation as only a nominal party, since no special pleadings have been filed on her behalf, nor any defense raised distinctive from that of her husband. We, accordingly, hereafter will use only the singular term, “appellant.”
Slaybaugh overlooked making this deletion.
The contract recited that Reed should pay Head and Lee “as per supplemental agreement” and that Pierson should pay to the brokers $10,000.00. The contract also contained the erroneous provision that brokers had already received $5,000.00 from Reed. Lee stated that he signed the contract because Pierson would not sign otherwise.
Emphasis supplied.
Under the terms of the supplemental agreement, Reed was to receive $50,000.00 net for this property, and Head and Lee were given two years to make the sale. | [
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Prank Holt, Associate Justice.
The main question presented in these consolidated cases is whether the use tax exemption provided by statute is applicable to the purchase of turbine generators which are being used by both appellees, Georgia-Pacific Paper Corporation and International Paper Company, in their respective operations of manufacturing or producing paper products. Georgia-Pacific Paper Corporation claims additional exemptions on its purchase of such items as anion resin, a sewer cleaning ball, miscellaneous conveyors, two small turbines, a towmotor and carrier, and recorder chart rolls. The appellant, the Commissioner of Revenues, levied an assessment in the sum of $30,935.84 against Georgia-Pacific Paper Corporation based upon the tux-bine gexxerator plus the other exxumerated items. The use tax assessxnexxt levied agaixist Ixxterxxatioxxal Paper Coxxxpaxxy was upoix the txxrbixxe gexxerator oxxly ixx the amouxxt of $27,063.69, or three per cexxt (3%) of the recexxt pux-chase px-ice of $1,908,549.04. The pexxalties were waived. The assessxnexxt agaixxst the Ixiterxxatioxxal Paper Coxxxpaxxy was paid xxxxder protest axxd actioxx was brought agaixxst appellaxxt to recover this sum paid uxxder protest oxx the basis the tux-bixxe gexxerator is exempt from the use tax. Appellee, Georgia-Pacific Paper Corporation, sought axx ixxjunctioxx to restraixx the Commissioxxer of Revenues from further proceedings to collect the tax assessed agaixxst it axxd sought a Declaratory Judgmexxt to establish that the above named itexxxs are primary facilities used directly ixx their maxxufacturixxg or processixxg operation axxd therefore, exempt pursuaxxt to Ax-k. Stat. Ami. § 84-3106 (Supp. 1961). This statute provides ixx pertiíxexxt pax-t as follows:
"84-3106. Exenxptioxxs.—There are hereby specifically exempted from the taxes levied ixx this Act [<$><$> 84-3101-84-3128]: * # *
Maxxufacturixxg or processixxg machinery, replacement parts, materials, and supplies used directly ixx the manufacturing or processixxg operation provided; such materials, machinery, supplies, axxd equipmexxt are xxot available within this State by reason of xxot being maxxufactured or produced within Arkansas; or are xxot available from ixxstate sellers’ or suppliers’ stocks in trade within this State. It is the intent of this subsection to exempt only such equipment, machinery, materials, or supplies that constitute the primary facility engaged in the direct production, processing or manufacturing of articles of commerce at industrial and processing plants in Arkansas and which are not available from the seller’s regularly maintained stock in this State.
The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations commonly understood within their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. Hand tools, buildings, transportation equipment, expendable items, office machines and supplies, and all other materials which are incidental or useful in connection with the manufacturing or processing operations and not directly used in the primary production processing or manufacturing are not included or classified as exempt. ’ ’
The appellant controverted the claimed exemptions. The cases were consolidated for trial by agreement.
In the case of Georgia-Pacific Paper Corporation, the Chancellor found that “the items on which the tax is sought are all directly used in the manufacturing or processing operation, within the meaning of the exemption. ” As to International Paper Company, the Court found “that the 20,000 K.W. steam turbine generator as employed in the Pine Bluff Mill of the plaintiff is a primary facility used directly in the processing and manufacturing operation of making wood, pulp and paper * * * that it is exempt from * * *” the use tax.
On appeal appellant relies for reversal upon four points which are aptly encompassed by appellant’s statement that:
“The question as to all of the above mentioned articles is whether or not such are directly used in manufacturing or processing within the meaning of the compensating tax exemption statute,- Ark. Stat., Sec. 84-3106 (D) (Pocket Supp.) * * *”
There appears to be no dispute about the fact that these items were unavailable for purchase in Arkansas.
The appellant does, however, strenuously dispute that the evidence presented by the appellee was sufficient to bring the questioned items within the purview of the statue. We agree with appellant that the burden is on appellees to clearly show they are entitled to the exemption from the use tax. There is no implied exemption from a tax and a claimant must clearly establish an exemption, since taxation is the rale and exemption the exception. Biscoe v. Coulter, 18 Ark. 423; Scurlock v. Henderson, 223 Ark. 727, 268 S. W. 2d 619. With this rule of law in mind, we now proceed to review the pertinent facts as adduced by the testimony in the cases at bar.
In the Georgia-Pacific Paper Corporation plant the logs are debarked in a “barking drum.” The debarked logs are moved to a knife clipping machine where they are cut into small chips. The wood chips are placed in a silo for storage. They are withdrawn as needed and loaded into “digesters” where a cooking liquor compound is mixed with the chips. The “digester” is closed and then steam pressure at 160 pounds is admitted from the turbine generator. The chips are cooked for three hours at 100 pounds pressure. This dissolves the bonding material that holds the cellulose together in the wood. "When the cooking is complete, then the cellulose fibers known as pulp remain. The pulp is then further washed and screened in the assembly line process. The wood fiber or pulp, in a suspension of water, is delivered to the paper making machines. These machines have continuous fine mesh bronze wire which holds the cellulose on the wire while permitting the water to drain through this mesh. The fibers form a mat on top of this mesh screen. It is pressed to further remove moisture and then goes into and around a series of heated cylindrical driers. These driers operate under 40 to 60 pounds of steam pressure received from the turbine generator. The purpose is to further dry the product, the mat of fibers, into a finished sheet of unbleached paper such as paper for newsprint and telephone directories. A further process is required to produce bleached pulp from which is made a heavier, stronger product such as milk cartons and drinking cups.
There are several boilers which utilize as fuel the waste material such as the bark, the chipper residue and the concentrated spent cooking liquor from the “digesters.” This fuel is used to generate steam in the boilers at 850 pounds pressure. The steam is then funneled to the turbine at this high pressure. As the steam passes through the turbine, turning parts of it, the energy is gradually spent or the steam pressure reduced. At the reduced level of 160 pounds pressure some of the steam is extracted and supplied to the ‘ ‘ digesters ’ ’ for the cooking of the pulp. The balance of the steam continues on through the turbine until the pressure level is further reduced to 60 pounds. At this point some of the steam is further withdrawn and funneled to that portion of this assembly line process where it is used in drying, evaporation in the tubular heat exchangers and various other applications. As the turbine is turning because of the steam pressure, thus reducing the pressure, it drives the generator which generates the electricity. Thus it provided the motive power for the various machines, pumps and other equipment in the paper making process. Therefore, the turbine generator performs a dual function. It utilizes the steam to generate electrical energy and in so doing it reduces the steam pressure and emits it at certain levels to component parts of the paper manufacturing process where it is used for various purposes, such as cooking, drying and heating.
The turbine generator in the plant of International Paper Company performs basically the same functions. The steam pressure enters the turbine from the boilers at 1,250 pounds where it is reduced and discharged to component parts in the mill at pressure levels of 400, 140 and 60 pounds. This machine was built according to specifications to fit a particular need. Thirty-two per cent (32%) of the steam entering the turbine is consumed in generating electricity. The balance of sixty-eight per cent (68%) is processed to proper pressure levels by the turbine and thence flows directly to various applications in the paper making process. Only approximately one-half (%) of one per cent (1%) of the electricity generated by the turbine is used in the mill for such needs as lighting and air conditioning.
The tenor of the appellees’ evidence was that in modern paper mills the turbine generator is a facility of primary importance in fulfilling the unique requirements of a continuous and unitary mechanical operation. It is undisputed that the use of steam turbine generators creates a balance between two forms of energy in the paper making process,—steam for cooking, heating, evaporation and drying—electricity for motive power. Although appellant presents a forceful and persuasive argument, we think the Chancellor was correct in his findings that these turbine generators, as employed and used by appellees, are clearly primary facilities used directly in the processing and manufacturing of paper products and, therefore, exempt from the use tax. Certainly it cannot be said his findings are against the clear preponderance of the evidence.
Appellant contends that the function of the turbine generator is a separate and distinct process and is completed before the manufacturing of the paper actually begins. Appellant relies on Scurlock v. Henderson, supra, where it was held that ginning cotton is not a manufacturing process. We do not consider this case in point. When cotton is ginned it is still raw cotton without the seed. In the case at bar the entire process, including the turbine generator, converts a raw material into a finished product which is taxed when it enters commerce. It is significant that at the next legislative session following the Henderson decision the statute was amended to exempt cotton ginning.
There is compelling evidence in this ease by recognized authorities that a steam turbine generator is such a necessary facility to a modern paper mill that one would not be constructed without such machinery. Each of these turbine generators is located in the very heart of the manufacturing process and performs ■ much the same function as the mainspring of a watch. Appellant quotes from Black’s Law Dictionary (4th Ed.) that:
“Primary is defined as ‘First; principal; chief; leading.’ Primary Purpose is defined as ‘That which is first in intention; which is fundamental’.”
Applying this definition it seems apparent to us that the steam turbine generator is a primary facility in the paper manufacturing process. If the turbine generator were removed the manufacturing operation would cease.
Other jurisdictions have construed turbine generators to be machines used “directly” in a manufacturing process and thus exempt. Allis-Chalmers Mfg. Co. v. Iowa State Tax Comm., (Iowa) 92 N. W. 2d 129; City of Ames v. State Tax Commission, (Iowa) 71 N. W. 2d 15; Niagara Mohawk Power Corp. v. Wanamaker, (N. Y.) 144 NYS (2) 458; Youngstown Building Material and Fuel Co. v. Bowers, (Ohio) 149 N. E. 2d 1. In the Allis-Chalmers case it was said:
“This turbine generator not only makes the electricity but furnishes steam which passes through it for * * * processing.”
Under any fair construction of our statute, giving the word “direct” a reasonable meaning in the cases at bar, we think the turbine generators are being directly used as primary facilities in the manufacture of paper products. To hold otherwise would be too narrow a construction and an unreasonable refinement.
In construing the legislative intent we not only look to the language of the statute but to the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the contemporaneous legislative history or other appropriate matters that throw light on the intent of the legislature. Arkansas State Highway Comm. v. Mabry, 229 Ark. 261, 315 S. W. 2d 900. In Morley v. Brown & Root, Inc., 219 Ark. 82, 239 S. W. 2d 1012, we said:
“There can be little doubt that the desire of the Legislature to encourage new industries to locate in the State prompted the passage of this exemption section, and it is proper to view and interpret the section in that light. ’ ’
We think it is manifest that our legislature clearly intended to exempt such machinery as these turbine generators when they are an integral part of the plant, employed and used in a manufacturing process such as in the cases at bar.
We have carefully reviewed the statutory rules of construction and the cases cited by appellant. Although ably presented, we do not consider them to be controlling in the cases at bar.
Appellee, Georgia-Pacific Paper Corporation, contends that certain miscellaneous items are also exempt from the use tax. Among these items are two small turbines. They are usable in driving fans that create the draft for the boiler and in pumping “feed water” to it. These turbines are used to drive some of the auxiliary equipment in the boilers and cause them to function. It appears that these small turbines are not readily adaptable to interchange or relocation between mills. We consider these turbines to be such an integral part of the functional system of the paper manufacturing process that they are also exempt for the reason we have heretofore given.
Appellant contends that the remaining items are excluded, or not clearly exempted by the terms in the last paragraph of § 84-3106 (D) [Ark. Stat. Ann. (Supp. 1961)] which reads as follows:
‘ ‘ * * # Hand tools, buildings, transportation equipment, expendable items, office machines and supplies, and all other materials which are incidental or useful in connection with the manufacturing or processing operations and not directly used in the primary production processing or manufacturing are not included or classified as exempt.”
Anion resin is a material to soften water and remove impurities from it before it goes into the boiler. This tends to prevent “scaling up” of the boilers. The sewer cleaning ball is a rubber ball with fins which is placed in the water lines at the water wells and washed through the lines for a distance of approximately five or six miles to the plant. These balls are used to clear any accumulated debris from the lines. The miscellaneous conveyors are used in moving waste material from a storage bin at the lumber mill into a mechanism that feeds a pneumatic conveyor which blows the waste material over to the paper mill. The waste material is then used as fuel for the boilers. The towmotor and carrier item is used to transport material between processes in the plants. The recorder chart rolls are information devices which are used to record the functioning of plug making equipment. They are information devices only.
As stated, this court has consistently held that the burden is on the taxpayer to establish clearly that the legislature intended the claimed exemption since taxation is the rule and exemption the exception. An exemption cannot be implied. Biscoe v. Cotdter, supra; Scurlock v. Henderson, supra; McCarroll v. Mitchell, 198 Ark. 435, 129 S. W. 2d 611; Wiseman v. Ark. Wholesale Grocers’ Assn., 192 Ark. 313, 90 S. W. 2d 987, and Hilger v. Harding College, Inc., 231 Ark. 686, 331 S. W. 2d 851. "VYe do not think the appellee, Georgia-Pacific Paper Corporation, has sufficiently met the burden of proof required of it as to these miscellaneous items being exempt. However, we do not mean to say that under all circumstances such items could never be exempt.
In the case of the Georgia-Pacific Paper Corporation, the decree is affirmed as to the turbine generator and the two small turbines; the decree is reversed as to the remaining items [anion resin, sewer cleaning ball, miscellaneous conveyors, towmotor and carrier, and recorder chart rolls] and the cause remanded with directions to enter a decree not inconsistent with this opinion.
The decree is affirmed as to International Paper Company.
This being an equity case, we adjudge all costs against the appellant.
In the opinion of Justice Robinson the balance of these miscellaneous items comes within the purview of the statute and are, therefore, exempt from the use tax.
Harris, C. J., not participating. | [
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John E. Jennings, Chief Judge.
Byron Foster was found guilty of possessing cocaine with intent to deliver and possessing drug paraphernalia, and was sentenced to twenty-five years in the Arkansas Department of Correction. He argues on appeal that the trial court erred in denying his motion to suppress evidence seized in a nighttime search of his residence, because the search warrant was based on an affidavit that contained an insufficient factual basis to justify a nighttime search. We disagree and affirm.
In reviewing a trial court’s ruling on a motion to suppress because of insufficiency of the affidavit, we make an independent determination based upon a totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993).
An affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. See State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). The issuing judicial officer must have reasonable cause to believe that (i) the place to be searched is difficult of speedy access; or (ii) the objects to be seized are in danger of imminent removal; or (iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy. Ark. R. Crim. P. 13.2(c); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991). The affidavit should speak in factual and not mere conclusory language. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).
The affidavit in the case at bar described the purchase of a controlled substance by a confidential informant at appellant’s residence, “3524 Asher.” That purchase was made on December 2, 1991; the warrant was executed that night at 10:30 p.m. The affidavit contained the following pertinent language:
Affiant states that the residence is so situated that the approach of the serving officers will be readily apparent to persons at the residence due to the residence being situated on the corner of Asher Avenue and Valentine Streets offering no immediate cover and/or concealment for the approaching officers to the residence and the use of darkness, as concealment, in the approach of the residence would better protect the evidence sought as well as the approaching officers because the evidence sought is concealed and packaged in such a manner that its destruction or removal will be likely prior to the officers arrival. Affi-ant states that because Byron Foster frequently removes cocaine from his residence and transports it to other locations and because cocaine is being distributed from the residence at all times of the day or night, the Affiant prays that a warrant be issued for a search of the residence, cur-tilage, and person of Byron Foster, and that said warrant be issued for a search of the residence any time of the day or night.
Appellant argues that these statements are conclusory rather than factual, and cites Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992), in support. As in Coleman, this affidavit does contain some general conclusory language. However, this language read in conjunction with additional factual information in the affidavit, such as the residence’s location on a corner lot and the lack of immediate cover for the approaching officers, can support a finding of reasonable cause of a nighttime search. See, e.g., Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993). While the factual information in this affidavit is not extensive, this is not a situation where we can characterize the statements as wholly conclusory or as having no factual basis. See e.g., Thompson v. State, 42 Ark. App. 254, 856 S.W.2d 319 (1993).
Having reviewed the totality of the circumstances, we cannot say that the trial court’s ruling is clearly against a preponderance of the evidence.
Affirmed.
Mayfield and Rogers, JJ., agree. | [
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John Mauzy Pittman, Judge.
Leonard Kay appeals from his conviction at a bench trial of driving while intoxicated, second offense. He contends that the trial court erred in admitting into evidence the results of a breathalyzer test given at the direction of the arresting officer. We affirm.
Prior to his trial, appellant moved to exclude evidence of the breathalyzer test on grounds that the officer had failed to advise appellant of his right to an additional test and to assist him in obtaining such a test as required by Ark. Code Ann. § 5-65-204(e) (Repl. 1993). That section provides:
The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete chemical test in addition to any test administered at the direction of a law enforcement officer.
(1) The law enforcement officer shall advise the person of this right.
(2) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
Appellant’s motion was denied after a hearing, and the results of the breathalyzer test were admitted against appellant at trial.
At the hearing on appellant’s motion, Officer Ben Cross of the Russellville Police Department testified that he stopped appellant’s vehicle at approximately 7:00 p.m. on February 21, 1992. After administering several field sobriety tests, Officer Cross arrested appellant for DWI and took him to the police department for a breathalyzer test. Officer Cross testified that he read appellant his rights regarding the administration of the test from a standard rights form. The form specifically included appellant’s right to have, at his own expense, a physician, qualified technician, registered nurse, or other qualified person of appellant’s choice administer a separate blood, breath, or urine test. It also stated that the Russellville Police Department would assist appellant in obtaining the additional test. Appellant signed the rights form, acknowledging his understanding of the rights, and agreed to take the breathalyzer. The test results showed appellant’s blood-alcohol level to be .218 percent.
Appellant then asserted his right to an additional test. Officer Cross testified that he told appellant that St. Mary’s Hospital would perform the test for approximately $400.00. The officer testified that St. Mary’s was readily accessible and, to the best of his knowledge, the only facility within his jurisdiction available to perform the blood test. Appellant told the officer that he did not have $400.00 in cash, but insisted that he had checks, that he had an account at St. Mary’s, and that the hospital would accept his check. Officer Cross told appellant that, as far as he knew, the hospital had a cash-only policy regarding DWI blood tests. Due to appellant’s insistence, Officer Cross telephoned the emergency room at St. Mary’s, informed hospital personnel that he had appellant in custody, and asked whether appellant’s check would be accepted. The officer testified that he was told that the hospital would accept cash only, payable before performance of the test. Officer Cross testified that appellant, who appeared extremely intoxicated, became very argumentative, saying over and over, “I’ve got checks. I can pay for it.” The officer did not recall appellant saying anything about credit cards. Nor did the officer recall appellant asking to be taken to any other facility, mentioning any other type of test (breath or urine), or requesting any other form of assistance. Because appellant did not have the necessary funds, the officer refused to take appellant to St. Mary’s.
On cross-examination, Officer Cross admitted that he had heard that St. Mary’s was a very expensive hospital. He denied, however, knowing the prices charged for blood tests by other facilities. He also denied that St. Mary’s was the only facility to which he would take a person for an additional test, stating that he would take a suspect to see the qualified person the suspect desired to see.
Appellant also testified at the hearing on his motion. He admitted that Officer Cross informed him of his rights by reading the rights form to him. Appellant testified that he asserted his right to a blood test as his additional test. He testified that he told the officer that he had with him $200.00 in cash, a couple of checks, and credit cards. Appellant stated that Officer Cross told him that he could not have a blood test unless he had $400.00 in cash. Appellant testified that, subsequent to the date of his arrest, he learned of two or three area medical clinics that perform blood-alcohol tests, including the clinic with which appellant’s personal physician is associated. Appellant also testified that his doctor’s clinic would accept checks and credit cards. Appellant did not know the accepted methods of payment at the other facilities to which he referred. Nor was there any proof as to the cost of a blood alcohol test at any of the clinics. Moreover, appellant admitted that he never mentioned or asked to be taken to any facility other than St. Mary’s. Appellant also admitted that he never asked to telephone a friend or relative who might bring him money for the test. Appellant concluded his testimony by stating that what he found unreasonable was Officer Cross’s failure to “take[] me to St. Mary’s where I could have made arrangements for payment and gotten my test.”
The parties stipulated that a phone call was placed to St. Mary’s on the day of the hearing (October 19, 1992)' and that hospital personnel stated that credit cards would be accepted for DWI blood-alcohol tests. However, the stipulation did not touch on how long that had been hospital policy. Nor did it touch on whether checks would be accepted.
We note that appellant’s motion was not one to “suppress” evidence under Ark. R. Crim. P. 16.2. Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993). Nevertheless, when a defendant moves to exclude a test pursuant to § 5-65-204(e)(2), the State bears the burden of proving by a preponderance of the evidence that the defendant was advised of his right to have an additional test performed and that he was assisted in obtaining a test. See McEntire v. State, 305 Ark. 470, 472, 808 S.W.2d 762, 763-64 (1991). Substantial compliance with the statutory provision about the advice that must be given is all that is required. Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985). Furthermore, the officer must provide only such assistance in obtaining an additional test as is reasonable under the circumstances presented. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985). Whether the assistance provided was reasonable under the cir cumstances is ordinarily a fact question for the trial court to decide. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985); Fiegel v. City of Cabot, 27 Ark. App. 146, 767 S.W.2d 539 (1989). It is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Girdner v. State, supra.
From our review of the record, we cannot conclude that the trial court erred in denying appellant’s motion. According to the testimony of both Officer Cross and appellant, the officer’s advice concerning appellant’s right to an additional test by the person of his choice literally complied with the statute. And, in light of all of the circumstances in this case, we cannot say that the trial court’s finding of reasonable assistance to obtain another test is clearly against the preponderance of the evidence.
Affirmed.
Cooper and Robbins, JJ., dissent. | [
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George Rose Smith, J.
The appellee brought this suit for a declaratory judgment. She seeks to determine whether her attorney, W. B. Howard, is entitled to charge the appellant, her automobile collision insurer, an attorney’s fee for having recovered the full amount of a subrogation claim held by the insurance company. This appeal is from a decree permitting Howard to retain 40% of the recovery as his fee.
In May of 1962 the appellant issued a $50 deductible policy of collision insurance to the appellee. On October 1 the appellee suffered personal injuries and property damage in a collision with Ray Purcell’s car. The appellant promptly paid all but $50 of the property damage (which amounted in all to $289.94) and took a subrogation agreement from the appellee. On October 29 the appellant sent a form letter to Purcell, warning him not to settle his liability without reimbursing the insurer for its claim. On November 11 the company again wrote to Purcell, stating that if it did not hear from him with ten days it would have no alternative except to file suit. The company did not in fact bring an action or take any further steps to enforce its claim against Purcell.
On November 21 the appellee employed Howard under a contract fixing a contingent fee of 40% of any sum obtained by compromise settlement. Howard filed suit against Purcell on February 27, 1963, seeking to recover both for his client’s personal injuries and for her property damage. In March a compromise settlement was reached with Purcell’s insurer. That company issued two checks, one for the personal injury claim and the other, in the amount of $289.94, for the property damage. The latter included both the appellant and the appellee as payees. This suit was filed when the parties were unable to agree upon Howard’s right to a fee.
The subrogation agreement provided that the insured should do nothing after the loss to prejudice the rights of the insurer. It is now insisted that the appellee breached the contract by filing suit for the property damage and by entering into the compromise settlement.
This argument is without merit. The appellee was entitled to file the action in her own name, the insurer not being a necessary party. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Moreover, since the appellee’s cause of action against Purcell could not be split, the insurer’s claim for property damage would have been destroyed if Mrs. Hammett had failed to include that count in her complaint. Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491. The appellant is charged with knowledge of the rule of law permitting the insured to bring an action for all the property loss. If the appellant wished to be informed of the filing of any such suit, so that it might intervene, it could have inserted such a requirement in the subrogation agreement. That was not done.
We do not perceive that the appellee’s action in compromising the property damage claim for its full amount was prejudicial to the rights of the insurer. In fact, if the appellee had paid over the entire proceeds of settlement to the insurer there would have been no dispute between the parties. Hence if the appellant’s rights have been prejudiced it is not because of any conduct on the part of the insured but because in the circumstances the law allows her attorney to collect a fee.
The appellant’s real grievance lies in having to pay a fee to an attorney not of its own choice. Subrogation, however, is governed by equitable principles. Webster v. Horton, 188 Ark. 610, 67 S. W. 2d 200. If the appellant had employed its own attorney and had actively participated in the action against Purcell it could not fairly have been compelled to contribute to Howard’s fee. Pontiac Mutual County, etc. Co. v. Sheibley, 279 Ill. 118, 116 N. E. 644. But when the insurance company has benefited from the work done by the insured’s attorney there is no inequity in requiring it to bear its fair share of the collection expense. An almost identical case so holding is United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N. W. 2d 174. Other cases recognizing the insurer’s duty to contribute to the expense of collection include Brown v. T. W. Phillips Gas & Oil Co., D.C. Pa., 105 F. Supp. 479; Shawnee Fire Ins. Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, 41 L.R.A. (n.s.) 719; Newcomb v. Cincinnati Ins. Co., 22 Ohio St. 382, 10 Am. Rep. 746; Powers v. Calvert Fire Ins. Co., 216 S. C. 309, 57 S. E. 2d 638, 16 A.L.R. 2d 1261. There is no contention that a 40% fee for collecting this small claim is unreasonably high.
The appellant also relies upon a second instrument executed by Mrs. Hammett, called a Loan Receipt. This document recites that she will not make a settlement or give a release without the written consent of the insurer. Howard actually gave the 'appellant notice of the proposed settlement a week before it was consummated. Inasmuch as Purcell’s insurer paid the .full amount of the property loss the appellant had no valid reason for withholding its consent. Hence it is not in a position to complain of the fact that its consent was not obtained.
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Ed. F. McFaddin, Associate Justice.
From a decree awarding the appellee specific performance, the appellant brings this appeal: On May 31, 1961, appellant Berry and wife entered into a written contract with appellee Crawford, by the terms of which Berry agreed to sell and Crawford agreed to buy a certain lot in Saline County; and Crawford agreed to make a payment of $1,000.00 and interest on May 31, 1962. Other pertinent provisions of the contract will be later mentioned.
On July 24, 1962, Berry filed the present suit, alleging that Crawford had failed to make the required payment when due, and prayed that all rights of Crawford under the said contract be declared forfeited. By way of answer and cross complaint, Crawford alleged that he was and had been at all times ready, able, and willing to make the required payment, and liad so notified Berry; and that Crawford was entitled to specific performance of the contract. The cause was heard ore t-enus in the Chancery Court and resulted in a decree awarding Crawford specific performance. From that decree Berry brings this appeal, and urges these points.
“I. The Court erred in its construction of the contract in question.
“A. The Court should not have ignored the express stipulation in the contract that time was of the essence.
“B. The Court erred-.in not treating the contract in question as an option to purchase.
‘‘ C. Appellee was not entitled to the remedy of specific performance.”
The instrument involved was entitled “Contract,” with Berry as the seller and Crawford as the buyer. It was not merely an option contract, but a definite contract wherein one party agreed to buy and. the other party agreed to sell. The contract stated: “The buyer agrees to pay to the seller for said lands the sum of One Thousand and 00/100 Dollars,” etc.; and, “The seller agrees that when all of the above mentioned purchase price has been fully paid with interest .... to execute and deliver to the buyer a deed for the said land . . .” The contract was a printed form prepared for use in installment payments, providing for interest on each installment “at the rate of five per cent'per annum from date until maturity and interest at the rate of ten per cent per annum from maturity until paid, ...” The -1% had been scratched out and 6°/o had been substituted, but no change had been made in the language that the amount bore interest at 10 a/o from maturity until paid. The contract also had this pertinent provision: “It is agreed that if the buyer should fail or refuse to pay any one of said installments when due as above stated, . . . or fail to comply with any provision of this contract, then the seller shall have' the right and option to declare all installments immediately due and payable and if payment in full is not made on demand then all obligations on the part of the seller shall cease and the buyer shall lose all rights under this contract . . . and it is distinctly understood and agreed that time is of the essence of this contract and the moving consideration for its execution by the seller.”
Crawford did not tender his check for the $1,000.00 and interest to Berry until June 13, 1962, which was fourteen days after the due date of May 31, 1962. Berry refused to accept the payment and filed this suit on July 24, 1962 asking the Court to declare all rights of Crawford to be forfeited. At the trial Crawford testified: that about thirty days before May 31, 1962, he met Berry in the post office at Benton and told Berry that he (Crawford) did not remember exactly the due date of the contract; that Berry replied, “I think it is in thirty days or something like that ... ”; that Crawford told Berry, “Get your papers together when you get ready for your money and come by . . .”; and that Berry made no objection to such remark. Berry did not take the stand in rebuttal to deny the aforesaid conversation. Crawford learned on June 12, 1962 that Berry was claiming a forfeiture and promptly sent Berry a check, which was returned with the statement that Crawford’s rights under the contract had been terminated for failure to make the payment promptly on May 31, 1962.
We have sketched the material portions of the evidence; and we conclude that the Chancery Court was correct in (a) refusing to declare the forfeiture claimed by Berry; and (b) awarding Crawford specific performance. Berry sought the aid of the Chancery Court to have a forfeiture declared, but he did not come into equity with clean hands. In the first place, the contract specifically provided that Berry would have to make a demand on Crawford after the due date; and Berry never made any such demand—rather, he sat silently by and sought equity’s aid to declare a forfeiture when he himself had not complied with the provisions for forfeiture. In Williams v. Shaver, 100 Ark. 565, 140 S. W. 740, we said: “It is well recognized that the right of forfeiture is a harsh remedy and liable to produce great hardships. For this reason it has been uniformly held that before a forfeiture will be declared the law will require that a strict compliance with every important prerequisite must be shown, even in such contracts where forfeiture is provided for by express terms.”
Furthermore, by the conversation in the post office, previously mentioned, Berry had led Crawford to believe that Berry would “bring the papers” when Berry wanted his money. Instead, Berry sat mute and claimed a forfeiture. He lulled Crawford into a feeling of security and thereby waived the right to declare a forfeiture without notice, even if the contract had been a mere option contract, which it was not, as previously mentioned. In Cordell v. Enis, 162 Ark. 41, 257 S. W. 375, we said: “Equity abhors forfeitures and will seize upon slight circumstances indicating a waiver, to avoid or prevent them.”
Berry insists that the words in the contract, “time is of the essence,” are so strong as to support Berry in his claimed forfeiture; and cites and relies on such cases as Ind. & Ark. Lbr. Co. v. Pharr, 82 Ark. 573, 102 S. W. 686. As we have previously stated, the rights of Crawford under this contract were more than that of the holder of a mere option; and the case at bar falls within the scope of the language found in Friar v. Baldridge, 91 Ark. 133, 120 S. W. 989:
“Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture, Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16; Block v. Smith, 61 Ark. 266. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived. The following equitable principle formulated by Mr. Pomeroy has been repeatedly approved by this court: ‘If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.’ 1 Pomeroy Eq. Jur. 452; Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Banks v. Bowman, 83 Ark. 425; Braddock v. England, 87 Ark. 393. ”*
We agree that the Chancery Court was correct in refusing Berry’s prayer for a feiture and also in awarding Crawford specific performance. Affirmed.
Mr. Berry’s wife was a party to the contract (evidently having dower interest), and is a party to the litigation. Mr. Crawford was doing business as “Crawford Realty Company” and is so styled in the pleadings; but for brevity and clarity we refer to the parties in the singular simply as “Berry” and “Crawford.”
Emphasis supplied.
For some more recent cases on “time is of the essence,” see: White v. Page, 216 Ark. 632, 226 S. W. 2d 973; Moffatt v. Wyman, 222 Ark. 247, 258 S. W. 2d 533; Vernon v. McEntire, 232 Ark. 741, 339 S. W. 2d 855; and McClain v. Alexander, 235 Ark. 64, 357 S. W. 2d 1. | [
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Jim Johnson, Associate Justice.
This appeal arises from eminent domain proceedings in Scott County to condemn land for highway purposes along Highway 270 near Wye City. On July 21, 1961, appellant Arkansas. State Highway Commission, filed a complaint and declaration of taking and deposited the sum of $400.00 for Tract 42 belonging to appellees Tyrus and Deen Bowman, $1,250.00 for Tract 44 (appellees W. G-. and Nova Sullivan), $350.00 for Tract 46 (appellees Garrett and Edna Shaddon), and $450.00 for Tract 47 (appellee R. D. Rose). The Scott Circuit Court entered an order giving appellant possession of the property as of July 21, 1961. On May 11, 1962, at pre-trial conference the court combined the above tracts for trial. Trial was held on June 13, 1962. After deliberation, the jury found that just compensation for Tract 42 was $2,500.00, for Tract 44 was $3,000.00, for Tract 46 was $1,750.00, and for Tract 47 was $1,300.00. From judgments on the verdicts, appellant has appealed.
This is a companion case to Arkansas State Highway Commission v. Carpenter et al., also handed down today. These cases were tried and appealed in the same week, they involved the same highway, same attorneys and many of the same witnesses. The points relied upon for reversal are substantially the same, as are the briefs. The records, of course, are not identical, and we must therefore determine this case on its own merits.
Appellant contends that the trial court committed reversible error in overruling the Highway Commission’s motion to strike the testimony of the landowner’s value witness, Donald Roderick, because the witness did not determine the just compensation due for the property on a before and after basis.
The witness testified on direct examination as to his opinion of just compensation for the partial taking of appellees’ property on a before and after basis. However, on cross-examination appellant’s attorney elicited the following testimony from the witness:
“Q. Now, Don, let me ask you this: You placed a value of $17,500 on the property before the taking. You have enumerated these elements of damage and have subtracted them from the $17,500 to get your after figure, is that correct?
A. Well, I have taken various things into consideration in doing that.
Q. But is that essentially what you have done?
A. No sir.
Q. How have you arrived at this figure then?
A. The element of damage, you mean?
Q. The after figure, what the property is worth after the taking?
A. I have had to estimate in various ways—I don’t know some of the things.
Q. Now you have enumerated these items that you’ve given me here. Have you subtracted those items from the before figure to get your after figure?
A. Yes sir.”
This testimony, standing alone, without considering it together with all of the witness’ testimony, does appear to be somewhat contradictory. However, in order to avoid any confusion, the trial court immediately gave the following admonition to the jury:
“Now, Ladies and Gentlemen, in so far as any .of these items like replacement of fence—these various specific items of damage which Mr. Roderick has enumerated, you understand, as I told you in the beginning, they in themselves—not any one of them or the sum total constitutes the measure of the just compensation to be arrived at in this case and they are only admitted to you as an aid in determining what the difference before and after would be and you are not to consider them at all unless you find that they are reasonable and where applicable are necessary and are to be considered under all the circumstances in the case. Now I want to caution you to base your verdict solely upon what you find the difference to be between the value—the market value of the land before the taking and the market value after the taking.”
Appellant forcefully contends that the witness’ testimony indicates that he determined the before value, ■estimated the damage to the property and subtracted that figure from the before value to arrive at his after value. Appellant’s contention is not substantiated by the record. Recapitulation of the witness’ damage figures compared with his before and after values, contained in appellant’s brief, clearly show that there is no such close correlation between the figures as would justify such a conclusion.
Appellant moved to strike all the testimony of this witness. This court has long held a motion to exclude all of the testimony of a witness was properly overruled if a part of it was competent. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; St. Louis, I. M. & S. R. Co. v. Taylor, 87 Ark. 331, 112 S. W. 745; Nichols v. State, 92 Ark. 421, 122 S. W. 1003. Without detailing the testimony further, appellant admitted the qualification' of appellees’ expert, who in the past has done appraisal work for the State Highway Department. Suffice it to say, some of this witness’ testimony was competent. This being true, we find no error in the trial court’s ruling.
Appellant further contends that the jury verdict on the Rose property, Tract 47, was excessive and beyond its power. Appellee Rose did not testify in his own behalf as to the value of his property. Appellees’ value witness testified that the damage' sustained by the Rose property was $1;000.00, whereas appellant’s witnesses assessed the damages at $650.00 and $400.00. The verdict is $300.00 above any testimony, and is therefore excessive on its face as there is no evidence to support the verdict in that amount. See Dodd & Co. v. Read, 81 Ark. 13, 98 S. W. 703; Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.
'• The judgments in favor of appellees Bowman, Sullivan and Shaddon are affirmed. The judgment in favor of appellee Rose is affirmed upon condition that a remittitur in the sum of $300.00 be entered within seventeen calendar days; otherwise the judgment will be reversed and the cause remanded for a new trial.
Ward, J., concurs. | [
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George Bose Smith, J.
This is a suit by the appellee Giller, the lessor, to require the appellant Parnell, the lessee, to account for royalties assertedly due under a rather unusual lease providing for the commercial production of salt water from the lessor’s land. Parnell sells the brine to a chemical company, which extracts bromine from it. The contract between Parnell and the chemical company requires Parnell to deliver the raw salt water (by pipeline) to the purchaser’s plant and to dispose of the spent brine (by returning it to the earth) after it has been processed.
The royalty payable to the lessor is computed upon the market value of the salt water at the well. The question in the case is whether the lessee, in calculating the market value, is entitled to deduct its expenses in piping the salt water to the chemical company and in disposing of the spent brine. The chancellor allowed the deduction of the pipeline expense but denied the deduction of the disposal expense. Both sides have appealed.
We have concluded that both deductions must he allowed under this provision in the'lease: “The royalty to be paid by Lessee is: On brine produced from said land and sold off the premises or .used off the premises in the manufacture of bromine or other product therefrom, the market value at the Avell of one-eighth (Vs) of the brine so sold or used; provided, that on brine sold at the Avells the royalty shall be one-eighth (%) of the amount realized from such sale.”
This lease Avas evidently patterned after a common form of oil and gas lease. In construing a similar clause in a gas lease we .held, in Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S. W. 830, that AAdiere the gas was used off the premises the lessee was entitled to deduct its transportation and distribution expense in determining the market value of the gas at the Avell. In principle that case controls this one.
Here the parties agreed upon two different methods for computing the royalty, depending upon Avhether the brine Avas sold on or off the premises. The appellee is manifestly in error in contending that the lessee is entitled to no deductions whatever when the brine is sold off the premises, 'for if that view were accepted there would be no difference at all in the two methods of computation. We must give effect to the parties’ purpose in distinguishing the two situations.
As a transportation cost the pipeline expense falls within the letter of the Bushmaier case. The expense of disposing of the used brine falls within its reasoning. Both services were demanded by the chemical company as a condition to its willingness to enter into the contract of purchase. It is not reasonable to suppose that the buyer would have agreed to pay as much as it did for the brine if the performance of these necessary steps had been its own responsibility. Hence, as in the Bushmaier case, these charges must be taken into account in fixing the market value at the well.
The appellee earnestly argues that it- ought not to be charged with either expense, because both charges are within the exclusive control of the lessee and are therefore subject to being unfairly or even fraudulently inflated. The parties, however, undoubtedly contemplated the lessee’s control in the matter, for it is the lessee that has the power to arrange sales off the premises. There is no proof that any excessive charge has been made. Should that situation arise the law may be expected to provide a remedy.
Finally, it is contended that if these deductions are permitted the way will be open for the lessee to charge all sorts of ordinary overhead and business expenses in the computation of market value. The answer is that the two items in dispute are not general business expenses of the lessee. They are services that are essential to and peculiar to the marketing of the product itself. They are services that might equally well have been undertaken by the purchaser. They are services that were considered by the purchaser in its determination of what it was willing to pay for the product. In the circumstances it cannot be doubted that the cost of the services should be credited to the lessee in fixing the market value of the raw salt water at the well.
The decree is reversed on direct appeal and affirmed on cross appeal; the cause is remanded for further proceedings.
MeF addin, J., dissents. | [
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Frank Holt, Associate Justice.
This is an action by the appellee to collect $580.95 on an open account for roofing materials. In appellant’s answer he admitted the purchases and by cross complaint sought $2,025.00 in damages as the “proximate result of the material not being as represented and guaranteed * * *” by the appellee. The court, sitting as a jury, found the issues in favor of the appellee. The appellant, on appeal, relies upon two points for reversal. We combine them for discussion on sufficiency of evidence since both points, in effect, contend that the evidence was insufficient to sustain the findings of the court as trier of the facts.
Appellant ordered and purchased roofing materials from appellee through a Maurice Bowman who Avas appellant’s tenant. Appellant testified that, upon Boavman’s recommendation, he employed and paid a certain individual to apply the roofing materials and that Boavman supervised the application. Within a short period of time after the application of the product on the roof, leaking occurred which damaged the interior and furnishings of appellant’s apartment building. Additional roofing material was ordered and applied to no avail and within a few months it became necessary to install a “complete new roof”. Appellant contends Mr. Bowman told him he was appellee’s agent and that he relied on Bowman’s unconditional representation and guarantee that the roofing material would keep his roof from leaking for ten years and, therefore, appellee is bound by its agent’s representations. The law is well settled that neither an agency nor the scope of an agency can be established by the declarations or actions of a purported agent. Smith v. Pleasant, 200 Ark. 1190, 139 S. W. 2d 377; Wright v. Harris, 222 Ark. 661, 262 S. W. 2d 112.
Further, it is a well established rule of law as to principal and agent that the nature and extent of an agent’s authority, when the evidence is in conflict, is a question of fact for the jury. Bradley Advertising, Inc., v. Froug Stores, Inc., 193 Ark. 639, 101 S. W. 2d 789. The appellee denied Bowman was its agent. Appellee adduced evidence that Bowman, as its salesman, was only authorized to make such guarantees as were conditionally expressed on its brochures, invoices, and in the printed instructions furnished with the product.
The invoice received by appellant reads inter alia:
“No representations, agreements or promise of the salesman (not shown on this invoice) whether verbal or in writing, shall be valid, except when confirmed in writing by an officer of the company. ’ ’
There is no evidence that appellee was ever aware of or confirmed in any manner Bowman’s unconditional representation. The brochure and the material replacement guarantee, in substance, provides for replacement of the material for a period of ten years to keep a roof in waterproof condition when applied according to instructions. According to appellee’s chief chemist the roofing material is waterproof when properly applied. It is significant in this case that no witness testified the Four Seasons Fibred Aluminum Coating roofing material was applied according to requirements.
On innumerable occasions we have held that in determining the sufficiency of the evidence to support a verdict all of the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to the appellee. Harkrider v. Cox, 232 Ark. 165, 334 S. W. 2d 875. Further, it is well settled law in this state that the findings of the trial court, as trier of the facts, have the verity and binding effect of a jury verdict and will be sustained if there is any substantial evidence since it is not within our province to determine where the preponderance lies. International Harvester Co. v. Layton, 148 Ark. 156, 229 S. W. 22. In the case at bar the evidence was in conflict. The appellee denied Bowman’s authority to make any representations or guarantees other than those contained in the terms of the replacement guarantee which required proper application of the roofing material. It cannot be said there is no substantial evidence to sustain the findings of the trial court sitting as a jury.
The judgment is affirmed.
“Should FOUR SEASONS be applied according to our simple printed instructions and fail to give you ROOFING, METAL or MASONRY PROTECTION for Ten Years from invoice date, except in case of earthquakes and other acts of God, and the account discharged per terms of order, we hereby agree to furnish NO CHARGE sufficient additional FOUR SEASONS TO KEEP your roofing, metal or masonry surface in a waterproof condition for the full duration of the TEN YEAR GUARANTEE PERIOD.” | [
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George Rose Smith, J.
In, February of 1962 the ■appellaiit, d civil service employee in' the Little Rock health department, was arrested upon a charge of operating a gambling house. Rule 2Í of the Little Rock Civil Service Commission provides that a city employee may be discharged for behavior unbecoming to a gentleman .or of, such a nature as to bring disgrace or disrepute upon a municipal department or any of its members. Before the criminal case was tried the city’s public health director instituted this proceeding against McNeal, under the civil service law. After a hearing the civil service commission ordered that McNeal be dismissed. That order was affirmed by the circuit court. McNeal now contends that his offense was not serious enough to amount to a violation of Rule 21 and that the commission should not have acted until the criminal charge had been disposed of.
It was not necessary for the commission to await the outcome of the criminal case. A criminal charge must be proved beyond a reasonable doubt, but in a civil proceeding a mere preponderance of the evidence is sufficient. Hence even if McNeal had been acquitted in the criminal case the civil service commission might nevertheless have found that he had committed the offense in question. Horn v. Cole, 203 Ark. 361, 156 S. W. 2d 787.
In a proceeding of this kind we review the evidence de novo, as in chancery. City of Little Rock v. Tucker, 234 Ark. 35, 350 S. W. 2d 531. McNeal was charged below with having operated a pinball machine as a gambling device. He owned several amusement machines that were on location at the Snack Shack, a combined beer tavern and pool hall run by his wife. A plain-clothes policeman testified that in the course of his duty he entered this .establishment one evening and succeeded in accumulating twenty free games upon a pinball machine, for which he requested payment from a woman behind the counter. The woman asked him to wait a minute, saying that she didn’t make the payoffs on the machine. In a few minutes McNeal appeared, pressed a button to clear the free games from the machine, and handed the officer a dollar. McNeal was arrested and admitted to two other officers tha!t he had made the payoff, saying that he did so because his wife was busy. On the witness stand McNeal conceded that he gave someone a dollar, but he denied having known what the payment was for. When all the circumstances are considered we think the decided weight of the evidence shows that McNeal knowingly took part in the operation of a gambling device. In fact, there is no real contention to the contrary.
We have no hesitancy in declaring that McNeal’s conduct violated the city’s Rule 21. His behavior was unbecoming to a gentleman; it was of such a nature as to bring him into disrepute as a municipal employee. It must be realized upon reflection that in our system of self-government it is essential that those in the public service demonstrate a high sense of morality. Public employment must be regarded as something more than a mere opportunity to earn a selfish livelihood. If those privileged to be in the public service do not display that basic integrity that the government itself must have, how can the people be expected to maintain their confidence in the system?
The suggestion here, that a public employee must be allowed to engage in professional gambling activities during his off-duty hours, is so greatly opposed to sound principle that we do not think it deserves extended discussion.
Affirmed. | [
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Sam Robinson, Associate Justice.
This is a property line dispute between adjoining landowners concerning a strip of land about 10 feet wide and 900 feet in depth. In 1947 the appellees, Walter and Thelma Williams, bought their property, about 2% acres, measuring 125 feet across the front and about 900 feet in depth. There was a nice dwelling house on the property with a driveway running from the highway on the north, in front of the property, up to the west side of the house. About 15 feet to the west of the house there was a wire fence running north and south the entire 900 foot .depth of the property. Without objection Mr. Williams testified that James Fugatt, from whom he purchased, told him that it was his fence; that he had built it, and that it was on the line or did not miss it much.
Fugatt had purchased the property from Cleve Berry, who also owned the adjoining property to the west. From the time of the purchase from Fugatt, Mr. and Mrs. Williams claimed to own up to the fence. The fence appeared to be the division line between the two properties, and during the entire 15 years that Berry owned the property on the west, following the purchase of their property by Mr. and Mrs. Williams, Berry never said or did anything to indicate that he did not consider that the fence was the line. In fact, in 1947 he asked the Williams for permission to put another strand of barbed wire on the fence, thereby acquiescing in the fence as the line. A property line can be established by long acquiescence. Stewart v. Bittle, 236 Ark. 716, 370 S. W. 2d 132; Weston v. Hilliard, 232 Ark. 535, 338 S. W. 2d 926; Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490.
Moreover, Mr. and Mrs. Williams have been in adverse possession of the strip of land for more than seven years. Mrs. Williams testified:
“Q. Have you and husband held this property up to the fence?
A. Yes, sir. We have tried to keep it up.
Q. Have you claimed the property up to the fence?
A. Yes, sir.
Q. When you say you have tried to keep it up, what have you done?
A. Well, we have tried to keep the driveway built up and we have tried to keep trees and shrubbery set out. We’ve not got—I’ve always tried to keep it clean, you know, because it is such a fire hazard down there the side from Mr. Berry’s. And—
Q. Go ahead.
A. That’s you know we didn’t want our house to catch afire. If his land caught afire.”
Floyd Williams, son of appellee, Walter Williams, testified that his father had mowed the land east of the fence and kept it up.
In October, 1962, appellants, James DeSalvo and his wife, purchased from Berry two 2% acre tracts west of the Williams’ property. One of the tracts joins Williams. Subsequent to the time of purchase, the DeSalvos had the property surveyed. According to the survey, the line between the Williams’ property and the DeSalvo land appears to be about the middle of the Williams’ driveway leading from the street to the Williams’ garage, which was built in 1961 and adjoins their house. The survey line is about 10 feet east of the fence which was there when the Williams’ bought the property in 1947. The survey line runs through the middle of the Williams ’ garage.
At the time the DeSalvos bought from Berry, the fence was in place only two or three feet west of the Williams’ garage. Any reasonable person would have considered that the fence was the line. Certainly no person would have thought the property line ran through the Williams ’ garage, and yet that is what the appellants now claim.
Berry still owns other property adjoining the DeSalvos on the west, and to make up for the 10 foot strip in controversy, Berry offered to give the DeSalvos 10 feet of land of the same kind and value as the land in dispute, but the DeSalvos refuse the offer.
We cannot say the Chancellor’s decree is against the preponderance of the evidence.
Affirmed. | [
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CarletonHarris, Chief Justice.
This is a Workmen’s Compensation case, which involves a carnival worker. Rufus Y. Lewellen, alias Ernest Welch, was given employment on September 2, 1961, at Lincoln, Nebraska, by Grlen Joplin, general manager of appellee, William T. Collins Shows. He was assigned by Joplin to work on the ‘ ‘ scrambler ride. ’ ’ The carnival, from Lincoln, moved to Fayetteville, Arkansas, for its next showing, to be held at the fairgrounds. Lewellen arrived in Fayetteville on Saturday, September 9, in the late afternoon, and was injured some time between 11:00 p.m. and early Sunday morning, September 10. Claimant contended that he was injured while in the course of his employment, and was entitled to compensation. The claim was controverted and, though allowed by the referee, was disallowed by the full commission, which found that claimant had failed to establish that his injury arose out of and in the course of his employment. On appeal to the Washington County Circuit Court, the Commission ivas affirmed, and appellant has appealed to this court.
No intricate questions of law are involved in this appeal, and we are only concerned with whether the finding of the commission was supported by substantial evidence.
Lewellen testified that before leaving Lincoln on Friday morning, Joplin saw a mattress lying on the ground and told claimant to pick it up and put it in a particular truck, carrying other carnival equipment, and upon arriving in Fayetteville, to take the mattress out of the truck and put it under Joplin’s house trailer. He traveled to Fayetteville ‘ ‘ on his own, ’ ’ riding part of the way Avith a man called “Slim,” Avho did not work for the carnival; “I think he Avorked for someone that has a tent there.” After arriving in Fayetteville, he helped put up the “cook tent” (not OAvned by the carnival, but privately operated). LeAvellen said that he saAv Joplin, Avho told him to get the mattress and “put it under my tent, in my trailer. ’ ’ According to claimant, he did not perform this task right then, but ate supper before 10:00 o’clock at Byrd’s Diner, stood around for a Avhile and then decided to “turn in.” He then Avent to the truck to get the mattress for Joplin, endeavored to pull it out of the truck, but his foot slipped, and he fell, severely injuring his shoulder.
“Well, when I come to I Avas laying, kind of sticking up in the air, and I Avas doAvn there—oh, my face was doAvn there on the ground, and it seemed like a bright light off and on. All of a sudden the ride Ave’d been Avorking on, Scrambler, I could see that just Avhirling around and round, seemed like there Avas little girls, little kids Avas SAvinging Avay off, and I Avas—I Avent to jump up, I Avent to raise up and I fell back. Then I Avent to begging for help, crying, screaming.”
The Avitness estimated that it Avas close to midnight AAdien he fell.
Gordon McNeese testified that he Avas an employee of Leonard Guest at the “cook” tent, but was not an employee of William T. Collins ShoAvs; that LeAvellen volunteered to help put up the “cook house” tent, and Avorked for about an hour and a half, but Avas not paid for such Avork.
James Edward Dykes, an employee of the Collins sIioavs, testified that he saw LeAvellen early Saturday night, and that claimant had been drinking; that he saw him again around midnight and LeAvellen was drunk. The witness then stated that he Avent to sleep (in a bed Avhich he set up by the side of his truck) betAveen 12:30 and 1:00 in the .morning, and was awakened by someone “moaning that they’d hurt their arm and their back; they’d fell out of the truck. And I was tired and sleepy; I just told them to shut up and go on to sleep.” Dykes said that the next morning he saw Lewellen at the “cook house” and the latter told him “that he Avas asleep; he Avas having a dream that some small kids was going to get on one of the rides; and he Avas getting off to put them on; and he fell out of the truck.”
Glenn Joplin, general manager of William T. Collins Shows, testified that after he had assigned LeAvellen to the “Scrambler Ride,” no other duties or additional Avork was given claimant. He stated that before he left Lincoln, he instructed all employees of the carnival, Avho AArere not truck drivers, to report at 8:00 o’clock on Sunday morning in Fayetteville; that from the time of leaving Lincoln on Friday morning until Sunday morning at 8:00, there were no duties whatsoever for LeAvellen to perform. Joplin testified that he saw claimant at his (Joplin’s) trailer on Saturday between 6:00 and.7:00 P.M., Avhen claimant came to him, wanting money. He stated that LeAvellen was not on duty, and would haA^e been “fired” if on duty, since he could smell liquor on LeAvellen at that time. He denied telling claimant to get a mattress, or, in fact, directing LeAvellen to do anything from the time he left Lincoln. The witness stated that Sunday morning about 8:00 o’clock, “he told me that he had been dreaming the night before and had dreamed about getting up, and Avalking out of the truck; he Avalked out, and he hurt hisself and wanted to know then if there Avas any way that I could Avork it in on the insurance to take him to the hospital. And I told him at that time that I had no insurance to cover him while he Avas off duty, but if he wanted to go to the hospital my nephew was fixing to go to town, and if he wanted to go to the hospital I would let my nephew take him up there, which he did. ’ ’
Joplin testified that the transportation of the carnival employees, except truck drivers, was their own “worry;” further, that he had no connection with the “cook house,” which was operated entirely by Leonard Guest; that Lewellen had no business on the truck from which claimant told the superintendent that he had fallen.
Robert Callan testified that he took Lewellen to the hospital, and that on the trip, he asked claimant how he was injured, and “he said he was sleeping at the back of the truck and had become excited and fell out.”
As stated at the outset, the sole question before- this court is -whether there -was substantial evidence to support the finding of the commission. It is readily apparent that such evidence existed. For instance,
1. Joplin denied that he told the appellant to get the mattress off the truck.
2. Joplin testified that there were no duties for appellant to perform from Friday morning, September 8, until 8:00 o’clock Sunday morning, September 10.
3. Dykes testified that appellant stated that he fell out of the truck in his sleep.
4. Callan stated that appellant told him that he had been sleeping in the back of the truck, had been drinking, and apparently became excited and fell out.
The commission’s finding that appellant’s injury did not occur during the course of his employment was supported by the evidence offered by appellees, which the commission had a right to believe.
Affirmed.
Dr. Coy C. Kaylor testified that Lewellen “had a collapsed lung on the right, and an acromioclavicular separation, fracture of the twelfth dorsal vertebra.”
The duties of Lewellen here consisted of helping people on and off the ride, and helping to tear down and set up the ride.
This truck contained floorings for Dodger (small cars), one of the rides of the carnival, with which Lewellen had no connection nor duties.
The commission did not find that Lewellen was intoxicated. | [
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Carleton Harris, Chief Justice.
This litigation relates to the proper construction of a deed. J. H. Fletcher and Ella Grimes Fletcher were husband and wife. Both had been previously married, and had children by the prior marriages. No children were born of the union of Mr. and Mrs. Fletcher. On August 26, 1905, Mrs. Ada Bevers and Joseph D. Bevers, her husband, conveyed certain property in the town of Springdale to Mrs. Ella G. Fletcher, the granting clause providing: “do hereby grant, bargain, sell and convey unto the said Mrs. Ella G. Fletcher, her heirs and assigns, the following described lands, situated in AYashington County, State of Arkansas, to-wit: (here follows description of property conveyed, which consisted of four lots in Block 9 in Springdale). ’ ’
The habendum clause provides as follows:
“To have and to hold the said lands and appurtenances thereto belonging unto the said Ella G-. Fletcher and unto her heirs and assigns forever, and I the said Ada Beavers hereby covenant that I am lawfully seized of said land and that I will forever warrant and defend the title to said land against all legal claims whatever, And, I, the said Joseph D. Bevers, husband, in consideration of said sum of money do hereby release, relinquish and convey unto the said Ella G. Fletcher, all my right, title, dower, and right of homestead in and to said lands.”
Immediately following the description of the conveyed lands in the deed, there appears a clause, which is the subject of this litigation. That clause provides:
“The conditions of this deed is as foliotes, to-ivit: at the ‘deth’ [sic] of the said Ella G. Fletcher, the title of the above said property to revert bach to John E. Fletcher or his heirs.’’
J. H. Fletcher died in 1931. On August 15, 1962, Ella G. Fletcher passed away. Mrs. Fletcher left a will, in which, after making several specific bequests (not here involved), she left all of the remainder of her property, real and personal, (the general residuary paragraph), to her grandchildren, Mildred Clarkson, and John Lynn Fletcher. These two parties are the appellees herein. John. F. Mullins and Eula Osborne are grandchildren of J. H. Fletcher, and are the appellants in this case. This action was commenced in the Washington Chancery Court by Mildred Clarkson, individually, and as executrix of the estate of Ella Grimes Fletcher, and John Lynn Fletcher, wherein a construction of the italicized clause was sought, the complaint containing the prayer that appellees be held to be the owners in fee of the lands and that the provision in question be declared void and of no effect, and repugnant to the grant of the lands to Ella Grimes Fletcher. After the filing of an answer, the case proceeded to trial, and at the conclusion of the evidence, the court rendered a lengthy opinion in which it held that the deed was not effective to confer any interest of any nature to John H. Fletcher or his heirs, but rather that the deed conveyed a fee simple title to Ella Grimes Fletcher. The court then entered its decree, holding that “said provision in said deed is declared void for uncertainty, and is of no effect, and is repugnant to the grant of the lands in fee simple to Ella G. Fletcher, and that a fee simple title was vested in Ella G. Fletcher at the time of the execution of said deed by Mrs. Ada Bevers and Joseph D. Bevers, her husband to said Ella G. Fletcher, and plaintiffs are the owners of said lands above described as sole devisees of said Ella G. Fletcher, deceased.” From this decree, appellants bring this appeal.
We have reached the conclusion that the court erred in.its findings. While we have no cases in Arkansas with a similar, factual background, our principles of construction is well expressed in Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215. There, this court, referring to the case of Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42, stated:
“In that case Mr. Justice Humphreys, speaking for an undivided court, quoted with approval the statement of the law from 16 Am. Jur. § 237, p. 570, to the following-effect: That the modern and now widely accepted rule to determine the estate conveyed by a deed with inconsistent clauses has for its cardinal principle the proposition that if the intention of the parties is apparent from examination of the deed ‘from its four corners’ without regard to its technical and formal divisions, it will be given effect even though, in doing- so, technical rules of construction will be violated.”
The above quotation states the rule which has been adhered to by this court for a long number of years, and it is by following this rule, i.e., viewing the instrument here in question, “from its four corners,” that we have concluded that the decree must be reversed.
Certainly, the clause was inserted for a purpose. The grantors meant to do “ something, ’ ’ else there would have been no occasion to insert the provision in question. We think it absolutely clear, from the language employed, that the grantors had only one thing in mind, and that was to convey to Ella Grimes Fletcher a life estate in the property, with remainder in fee in John H. Fletcher or his heirs. It is true that the words used are technically incorrect, but when the entire instrument is scrutinized, we think the intent of the Bevers is unquestionably established. The learned Chancellor was evidently of the opinion that the provision in question was void because of the use of the language, “revert back,” John H. Fletcher having no prior interest in the lands, and he held that a remainder interest was not created in the instrument, but that the deed conveyed a fee simple title to Ella Grimes Fletcher. A case bearing great similarity to the instant litigation is Petty v. Griffith, et al (Mo.), 165 S. W. 2d 412. There, the validity of certain deeds was questioned. The nature of the instruments is best explained in the language of the court:
“The first deed (‘Exhibit 1’) is dated January 3, 1923, and recites that Lucina B. Franklin is the party of the first part and that Bell Ford Griffith is the party of the second part. It says: ‘ That the said party of the first part, in consideration of the sum of One Dollar and Love and affection * * * to her paid * 0 # does by these presents Grant Bargain and Sell, Convey and Confirm, unto the said party of the second part, her heirs and assigns, the following described * * * land.’ Following the description is this paragraph: ‘ The intention of grantor herein being to convey to the said Belle Ford Griffith, grantee herein, a life estate only, and at her death to revert to G. M. Beal of Fremont County, Iowa, and his legal heirs.’
“The clause defining the estate granted (the habendum clause) recites that the grant is ‘unto the party of the second part, her heirs and assigns, forever.’ The deed recites the covenants usually contained in a warranty deed.
“The second deed (‘Exhibit 2’), conveying a different tract of land, is exactly like the first deed except for slight differences in the paragraph following the description. That paragraph in the second deed says: ‘ The intention of Grantor being to convey to the said Belle Ford Griffith, grantee herein, a life estate only, and at her death to revert to G. M. Beal of Fremont County, Iowa, and his legal heirs only.’ ”
It will be noted that the only difference in those deeds and the one here in' question is that, following the description, the term, “life estate,” is used, although both the granting and habendum clauses, purportedly convey a fee simple title (as here), and the disputed clause also uses the term, “revert to G. M. Beal of Fremont County, Iowa, and his legal heirs” (here, “to revert back to John H. Fletcher or his heirs”). There, it was contended that Beal was a “stranger,” the same contention being made as to J. H. Fletcher in this case. There, too, the trial court reached the conclusion that the fee simple title was in Belle Ford Griffith, and that the heirs of G. M. Beal had no interest whatever in the land by reason of these deeds. The Supreme Court of Missouri, in a comprehensive opinion, reversed the trial court judgment, and the reasoning used by the court is quite, apropos to the case at bar, since the same arguments were there advanced by the appellees as present appellees present for our consideration. Since the facts in the Missouri ease are so very similar, and the reasoning employed by the Missouri court completely expresses our own views, we quote from the opinion of the Missouri Supreme Court as follows:
“Did Lucina Franklin, by these deeds, convey her fee simple title in the land to Belle Ford Griffith? Or, did she convey Belle Ford Griffith a life- estate only and convey the remainder in fee simple to the heirs of G. B. Beal?
“The trial court concluded that the fee simple title was in Belle Ford Griffith and that the heirs of G. B. Beal had no interest whatever in the land by reason of these deeds. Belle Ford Griffith’s argument in support of the trial court’s decree is that the deeds constituted an absolute conveyance of the fee simple title to her and that the clause following the descriptions, not being-in the clause in which the estate granted is usually defined, is repugnant, contradictory of the words of conveyance contained in the deeds and is, therefore, void. She says that G. B. Beal and his heirs had no interest in the land and consequently there could be no such tiling-as the title reverting to them. As to Beal and his heirs, she says there were no words of conveyance and, therefore, they are not parties to the deeds but strangers and the most that can be said for their claims is that the clauses following the descriptions indicated that the grantor intended to convey them some interest but failed to do so.
“We agree with the respondent that the deeds use the language and terminology usually employed in conveying a fee simple title and that absent the clauses following the descriptions these deeds do constitute an absolute conveyance of the fee simple title. [Citing-cases.] We also agree with the respondent that the title could not “revert” to G. B. Beal and his heirs. The word “revert” to those skilled in conveyancing usually means that the instrument contains a clause so limiting- the estate conveyed that there is a possibility of its terminating- and reverting- to the grantor; it is a reversionary interest, a defeasible fee simple estate, which could not exist here because G. B. Beal and his heirs were neither grantors nor owners and there are no words of defeasance in the deeds. [Citing authority.] Nor could there be any title or interest in G. B. Beal and his heirs by reservation or exception because the one reserves to the grantor some new interest out of the thing granted, while the other excludes from the operation of the grant some existing- part of the estate, neither of which is attempted in this instance. [Citing authority.]
“We do not agree with the respondent that Beal and his heirs are not grantees in. the deeds and, therefore, strangers. * * * .
“It does not necessarily follow from the fact that one is not mentioned in the places or clauses of a deed in which grantees are usually named or indicated that he may not he or become a grantee. It is immaterial in what part of the conveyance the grantees’ names appear as long as the parties ’ intention is clearly and plainly manifest as to who they are and the estate they are to receive. [Citations.] The rule as to the repugnant designation of parties is that ‘All the language of a grant should be considered and effect given to it unless so repugnant or meaningless that it cannot be done, in which ease the repugnant or meaningless portion may be rejected.’
“Neither do we agree with the respondents’ contention that the clause following the descriptions is necessarily contradictory of the estate previously conveyed and, therefore, void for repugnancy. If repugnancy or-irreconcilable conflict exists, of course, the clause in which estates are usually defined and granted would prevail over a subsequently conflicting clause. But, as the case is with the grantees so it is as to repugnancy in other respects, even if various clauses do conflict, yet if the intention of the parties may be gathered from the whole instrument, rather than from particular segregated clauses, that intention will prevail and be given effect if possible and if it is not contrary to some positive rule of law. [Citations.] ‘In accordance with the modern rule, which is to ascertain the grantor’s intention from all the terms of a deed in all cases where it is possible so to do and to consider all the clauses together without undue reference to their location in the deed, where two clauses are inconsistent, the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collected from the whole instrument. The primary or dominant intent expressed in the instrument, when ascertained, will control.’ ”
It follows that the Chancellor erred in his ruling.
The litigation is thus disposed of, i.e., we reach our determination solely and entirely from the language used in the deed itself; however, it is interesting to note that Mrs. Fletcher apparently felt that she was only possessed of a life estate in the property. In the first place, wishing to construct a bungalow upon a tract in the northwest corner of the property conveyed in the deed, Mrs. Fletcher, many years ago, purchased this particular tract from the children and grandchild of J. H. Fletcher, paying to them the sum of $300 for the property. Joe Yingst, caretaker at the First Methodist Church for the past seven years, testified that the church is located right east of the Fletcher “home place,” and he went to the Fletcher home once a week for five or six years before her death to wind a clock; that Mrs. Fletcher told him that the Methodist people wanted to buy a strip across her lot for a parking lot, but that “she couldn’t sell it.” Yingst was not acquainted with appellants, and apparently had no interest in the case. He also testified that she said, “she guessed the church was counting the days so they could buy the property from the heirs.”
Mrs. Sadie Croft, 83 years of age, testified that she had known Ella Fletcher from 1914 until the time of her death; that she and Mrs. Fletcher were close friends and visited back and forth. Mrs. Croft stated that Mrs. Fletcher told her of the efforts of the Methodist church to buy the property mentioned, and “she said she couldn’t sell it because it belonged to the Fletcher estate. * * * She said they kept wanting to buy it but she couldn’t sell it.” A few other instances appear in the record which indicate that Mrs. Fletcher considered she only held a life interest, but as heretofore stated, our conclusions are based solely upon the provisions in the deed, which we consider to be clear and unambiguous.
In accordance with the reasoning herein set forth, we are of the opinion that Mrs. Fletcher only held ab solute title to the tract, heretofore referred to, wherein she purchased, for $300.00, the interest of the daughters and granddaughter of J. H. Fletcher. Appellees have no valid claim to the balance of the property in litigation.
The decree is reversed, and the cause remanded to the Washington Chancery Court with directions to enter a decree not inconsistent with this opinion.
The connection, or relationship, between the Bevers and Fletchers is never shown in the record.
Emphasis supplied.
Appellees herein.
More particularly described as follows: “Beginning at the Northwest corner of Block Number nine (9) in the Original Town of Springdale (Old Town) as designated on the plat of said Town, now on file in the office of the Circuit Clerk of said County of Washington, State of Arkansas, and running thence east 60 feet, thence south 108 feet and 9 inches, thence west 60 feet, thence north 108 feet and 9 inches to the place of beginning.” | [
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George Rose Smith, J.
The principal appellant, Jack S. Bew, was formerly the president and general manager of the appellee, a corporation engaged in the linen service business. Bew’s contract with Independent Linen provided that during his employment with the company and for a period of five years thereafter he would not be connected directly or indirectly with any other linen service company or with any laundry anywhere within Independent Linen’s territory in Arkansas, which included all the state except two small areas in the northwest and southwest corners.
In April of 1963 Bew decided to go in business for himself. To this end he created the other appellants, two corporations, and in tlieir names bought from Myron Lasker a family laundry business in Little Rock and a companion linen service business that Lasker had operated in conjunction with the laundry. A few weeks later Independent Linen brought this suit, not only to enjoin Bew from engaging in either the laundry business or the linen service business but also to compel him to transfer both his purchases to Independent Linen, on the theory that his conduct had been a violation of his fiduciary duty as an officer of the company. The chancellor entered a decree granting relief to the plaintiff on both grounds and denying Bew’s counterclaim for back salary in the sum of $17,000. All three matters are in issue upon this appeal.
First, we are of the opinion that Bew is correct in his insistence that his agreement not to engage in either the laundry business or the linen service business for five years was contrary to public policy and void. A naked contract not to compete with another is against public policy. Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A.L.R. 247. Such an agreement is permissible, however, either in connection with the sale of a going business or, as here, in connection with a contract of employment. Yet even in those instances the restraint is unreasonable and void if it is greater than is required for the protection of the promisee or if it imposes an undue hardship upon the person who is restricted. Rest., Contracts, § 515, which we quoted with approval in Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693. Owing to the possibility that a person may be deprived of his livelihood the courts are less disposed to uphold restraints in contracts of employment than to uphold them in contracts of sale. Williston, Contracts (Rev. Ed.), § 1643; Banks, Covenants Not to Compete, 7 Ark. L. Rev. 35.
The contract before us not only provided Independent Linen with greater protection than it required; it also imposed an undue hardship upon Bew. According to the proof there is a clear-cut distinction between a family laundry and a linen supply service. A family laundry is engaged principally in laundering clothing and household linen for residential customers. A linen service company deals principally with commercial customers. Such a company owns commercial uniforms, restaurant linen, barber supplies, and the like, which the company rents to its patrons. Its routemen make calls at frequent intervals for the purpose of collecting soiled linen and replacing it with an equal supply of clean linen.
When Independent Linen and Bew executed their agreement the company was engaged in the linen service business, but never in its history had it been engaged in the laundry business. Hence its attempt to restrain Bew from entering the latter field went decidedly farther than the company’s protection required. On this point the Restatement of Contracts, § 515, gives this pertinent illustration: “A employs B for five years as manager of a cotton mill. As part of the bargain B promises not to become a manager of a mill of any kind in the city where he is employed by A for three years after the termination of the employment. The restraint is more extensive than is necessary to protect A, and the promise is illegal.”
Moreover, the attempted restraint for a period of five years was unnecessarily long and imposed an undue hardship upon Bew. The appellee relies upon Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S. W. 2d 185, where we upheld an employment contract containing a restraint. There, however, the business involved trade secrets, and the restriction was for only a year. We do not perceive that the linen service business really involves trade secrets. Hence the case at bar is controlled by McLeod v. Meyer, 237 Ark. 174, 372 S. W. 2d 220, where we held void an employment contract calling for a five-year restraint.
Secondly, the chancellor found that Bew had violated his fiduciary duty toward Independent Linen in purchasing the two businesses from Lasker. The decree in effect substituted Independent Linen for Bew as the purchaser of the Lasker enterprises. Bew was directed to transfer the assets of those businesses to Independent Linen, and the latter ivas directed to reimburse Bew for the amount of his payments to Lasker.
In charging a breach of trust the appellee contends that Bew purchased the Lasker properties for himself at a time when he knew that his own employers were negotiating with Lasker for the same purpose. Bew insists that his employers had already lost interest in the Lasker properties before he took any step to acquire them. This issue involves a question of fact upon which ive think the chancellor's decision to be contrary to the weight of the evidence.
We narrate only the salient points disclosed by a large record. BeAV came to Little Rock in 1955 as executive vice-president and general manager of Independent Linen. That company was then a subsidiary of Memphis Steam Laundry, Inc. In November of 1962 Moe Pear and his associates organized All State Linen Service, Inc., and purchased- all the stock of Memphis Steam. Thus Independent Linen became a subsidiary of All State.
Early in 1963 Lasker decided to sell his enterprises. He requested a Memphis attorney, Herbert Blazer, to see if Memphis Steam might be interested in the purchase. Blazer took the matter up with J. Allen Hanover, AAdio Avas the attorney for Pear and his company, All State. Pear and his associates Avere interested and had tAvo conferences Avith Blazer. They learned that Lasker owned a building in which he operated a family laundry as his main business and a comparatively small linen supply service. We think it a fair inference from the record that the Pear group Avere interested only in the latter.
Pear or some other officer of All State instructed BeAV to inspect the Lasker plant. Bew did so and made a report Avhich, as far as the record discloses, AAras entirely accurate. The appellee argues that the report may have been inaccurate and professes to have no kmrwledge about the true condition of the Lasker property. We find it impossible to believe that the appellee filed a complaint seeking to take over Bew’s contract without having first satisfied itself that the purchase was advantageous.
Bew was next instructed to see if Lasker would sell the linen supply business to Independent Linen and the rest of his holdings to others. This proposal was completely unacceptable to Lasker, who was determined to protect his employees by selling his holdings as a unit. Bew reported this fact to his employers, and in our opinion they had no further interest in the Lasker property. Charles Pear, one of the owners of All State, admitted on the witness stand that he had told Bew that if his report was correct he and his associates did not want to buy the laundry. There is no indication that Bew’s report was not correct. Lasker and his local attorney both testified that they talked to G-lazer by telephone and were informed that “the deal was dead.” Lasker also stated positively that Bew did not approach him about buying the property for himself until “the Memphis deal . . . was dead. ” Furthermore, when Bew went to Memphis to inform Pear and another officer of All State of his purchase their only protest was that he was under contract not to enter a competing business. If they were really still actively negotiating for the Lasker property that fact would surely have been mentioned at once.
In insisting that there was a breach of a fiduciary duty the appellee relies strongly upon Raines v. Toney, 228 Ark. 1170, 313 S. W. 2d 802. That case bears little resemblance to this one, for there the corporate officer undermined his own company by acquiring one of its general agency contracts for himself. This language in that opinion is really applicable here: “This doctrine of ‘corporate opportunity’ is but one phase of the rule of undivided duty and loyalty on the part of corporate fiduciaries. It does not preclude a corporate fiduciary from engaging in a distinct enterprise of the same general class of business as that which his corporation is engaged [in], so long as he acts in good faith.” We are not persuaded by the weight of the testimony that Bew acted in bad faith.
Furthermore, we are not at all convinced that the proper parties are before us. Lasker, who sold his business largely on credit, may well have an objection to the substitution of a new purchaser, especially as the contract provided for Lasker’s employment as a consultant for seven years. Yet Lasker is not a party to the case. Indeed, there is reason to doubt if Independent Linen is the right plaintiff. There is almost no indication in the proof that it was ever intended that this particular subsidiary would purchase the Lasker properties. Bew mentioned only the proposal that Independent Linen buy the linen supply business. Charles Pear testified that he asked Bew whether he thought the Lasker property should be purchased “by All State,” and whether Bew thought it would be a good purchase “for All State.” Moe Pear and his associates were officers of the parent company. Their testimony relates only in general terms to their efforts to acquire the Lasker holdings. Yet Independent Linen is the sole plaintiff. Whether Bew may have violated a duty toward All State or toward the Pear group is not an issue in the case at bar. There is almost a complete absence of proof that he disregarded any obligation owed to Independent Linen, for that company is not shown to have been interested in the Lasker properties.
Thirdly, Bew filed a counterclaim for the recovery of back salary in the sum of $17,000. Prior to the fiscal year ending May 1, 1962, Bew’s income as manager of of Independent Linen had averaged about $35,000 a year, reaching a peak of $48,400 in the last of the years mentioned. His contract of employment recited that his compensation would be fixed by mutual agreement. At the beginning of the 1962-1963 fiscal year the directors of Memphis Steam adopted a resolution setting his salary at $12,000 a year, plus five per cent of the profits. It was expected that under this resolution Bew’s income would be about $35,000.
All State bought Memphis Steam in November of that year. On or about January 1, 1963, the directors of All State notified Bew that thenceforth he would be paid a fixed salary of $20,000 a year, with no share in the profits. Bew insists that he did not agree to this arrangement, but the record simply does not support his contention. He continued to work for the company for three more months, accepting compensation at the new rate. There is no proof whatever of the amount of profits he might have received had the first resolution not been rescinded. In the circumstances he must be regarded as having acquiesced in the directors’ decision to reduce his compensation to $20,000 annually.
The decree is reversed, and both the complaint and the counterclaim are dismissed for want of equity.
McFaddin, J., concurs; Ward, J., dissents. | [
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Prank Holt, Associate Justice.
The dispute in this case concerns a one acre tract of land on which is located a cemetery known as the “Bowen Graveyard.” The appellees, as the heirs and relatives of loved ones buried in this cemetery, brought this suit as a class action to establish the right to use “Bowen Graveyard” as a public cemetery. The appellants denied that a public cemetery existed and, also, any interference to appellees or the public as to existing graves.
Appellants bring this appeal from a decree favorable to the position of appellees as to a part of this one acre. For reversal appellants contend that (1) they are the owners of the legal title to this portion by virtue of a 1946 deed and (2) that appellees have abandoned any right to use it for burial purposes.
In 1913 A. M. Bowen and his wife, parents of appellant W. Ray Bowen, conveyed by warranty deed to the Trustees of the Pisgah Methodist Church one acre of land on which existed a cemetery “* * * known as the Bowen Graveyard. ’ ’ In 1946 the Trustees of the Pisgah Methodist Church conveyed by quitclaim deed to the appellants this same one acre tract of land * * known as the Bowen Graveyard.” In 1947 this cemetery was the subject of an action instituted in Pike County Chancery Court against appellants with reference to appellees’ rights of ingress and egress. There was no formal decree rendered in the case. The docket notation recites that appellants were required to allow appellees access “ * * * to cemetery until such time as a road can be constructed * *
From 1915 until 1962 a fence enclosed the east half of this one acre tract. It is undisputed that the fence was maintained in this same location from 1915 until 1962 when the fence was removed by appellants from the south boundary of this enclosed portion. The south fence was moved northward and relocated. As a result, the new south boundary fence then enclosed about one-half of the area previously enclosed by fence. All of the graves were contained in this newly constricted area of one-fourth acre. Before relocation of the fence by appellants the south portion of the fenced area was utilized to some extent by use of the trees for shade during funeral services. This south portion, where no graves are found, received some care and attention from appellees and the community. There have been no burials in the cemetery since 1950. Several witnesses testified that since the north portion was almost filled to capacity they desired and expected to be buried in this south portion of the cemetery and, thus, near their loved ones.
In rendering his opinion, the Chancellor divided the one acre into three parts. Tract No. 1: The area now enclosed by fence, or that portion containing the graves [approximately one-fourth acre]. Tract No. 2: That part of the area from which appellants removed the fence and containing no graves but previously enclosed with Tract No. 1 [approximately one-fourth acre]. This is the “disputed area” which is the basis for this appeal. Tract No. 3: The remaining part of the one acre tract which was never enclosed [approximately one-half acre]. The Chancellor found that the appellees have no right or interest in Tract No. 3 and awarded it to appellants since it is undisputed that it was never enclosed nor used for cemetery purposes and that since 1915 until the present time it has been used by the appellants, or their predecessors in title, for agricultural purposes. The court further found that the area represented by tracts one and two is a public cemetery and that any legal title which appellants hold from the Church was subject to the easement that accrues from a public cemetery and that appellees have never abandoned their rights to such cemetery. Accordingly, the Chancellor ordered the appellants to remove the new fence and relocate it where it existed originally so that the enclosure, as restored, would contain approximately one-half acre. The appellants were also enjoined from interfering with the appellees’ and the public’s right to use “Bowen Graveyard” as a cemetery. On appeal the appellants question only the court’s disposition of Tract No. 2. There is no cross-appeal by appellees.
"We do not agree with appellants’ contention that they are the owners in fee simple absolute of this disputed portion of land, Tract No. 2, by virtue of a 1946 quitclaim deed. A purchaser of land is charged with notice that such has been dedicated to public use for cemetery purposes where there are visible signs and suitable markings to call his attention to the existence of such a cemetery and he takes it subject to such public rights. In Roundtree v. Hutchinson, (Wash.) 107 P. 345, the court said:
“It is true that there are no reservations in the deeds of appellant’s chain of title, but both he and his grantor, Wooley, liad notice of the existence of the burying ground, and purchased subject to the rights the public had acquired in the property. ’ ’
Also see United Cemeteries v. Strother, (Mo.) 61 S. W. 2d 907 and Heiligman v. Chambers, (Okla.) 338 P. 2d 111.
In the case at bar, however, in addition to appellants’ knowledge' of the existence of the cemetery, it is to be noted that the warranty deed by appellant’s father in 1913 clearly stated that the conveyance of the property in question was for cemetery purposes and described it as the “Bowen Graveyard.” Also, in 1946 the quitclaim deed from the Pisgah Methodist Church Trustees to the appellants referred to the one acre being conveyed as the “Bowen Graveyard.” It cannot be said that appellants purchased this property without knowledge of the existence of this cemetery.
Prom our review of the cases in other jurisdictions, since we find none applicable in our own, we think the rule that a purchaser of land takes it subject to any dedication and use for cemetery purposes is best stated in the case of State v. Forest Lawn Lot Owners Association, (Tex.) 254 S. W. 2d 87. There the court said:
“ * * * The substance of what is said by the courts in all the cited cases is that property once dedicated to cemetery purposes and in use as a burial ground for the dead may not be sold, either voluntarily or through judicial proceedings, in such manner as to interfere with the uses and purposes to which it has been dedicated and devoted.” [Emphasis added.]
See also 10 Am. Jur., Cemeteries, % 6, p. 490; 14 C. J. S., Cemeteries, § 25, p. 84; 130 A.L.R. 264 and 75 A.L.R. 2d 599.
We think the Chancellor was correct in his holding that appellants’ legal title is subject to the appellees’ and the public’s use of the Bowen Cemetery.
Appellants next contend that since no graves exist in the south half of the originally enclosed portion the appellees have abandoned it for cemetery purposes. We do not agree. It is undisputed that this portion was enclosed by fence from 1915 until the appellants removed the fence therefrom in 1962 and that such portion has been used for auxiliary purposes in conducting burial ceremonies. Further, the evidence indicates some maintenance by appellees and that relatives and loved ones of those interred in the north portion desire burial in Tract No. 2, the area in dispute. The appellants attempt to refute this proposed future use since there have been no burials in the cemetery since 1950.
The general rule is that a cemetery is never abandoned nor loses its character and identity as such until the bodies reposing there are removed by friends or relatives or by proper public authority and mere disuse or the lack of continued interments does not constitute abandonment. It continues subject to use as a cemetery so long as the burials there awaken sacred memories in the minds of the living. 10 Am. Jur., Cemeteries, § 36, p. 512; 14 C. J.S. § 22, p. 82. Also see Wooldridge v. Smith, (Mo.) 147 S. W. 1019 and Currier v. Woodlawn Cemetery, (N. Y.) 90 N. E. 2d 18.
In Morgan et al. v. Collins School House, (Miss.) 133 So. 675, the court said:
® * The custom of ages has been for people to bury their relatives together or in the same cemetery as far as reasonably possible and giving a privilege to bury should be understood as carrying this right.”
Although there are no graves in Tract No. 2, the south portion, we think that from the facts in this case it is unquestionably a part of the cemetery as a whole.
In County Board of Commissioners for Clarendon County v. Holladay, et al., (S. C.) 189 S. E. 885, the court had before it the question as to whether the cemetery was confined to that area actually occupied by graves. In that case the court said:
* * A cemetery includes not only lots for depositing the bodies of the dead, but also avenues, walks and grounds for shrubbery and ornamental purposes. All must be regarded alike as consecrated to a public and sacred use.”
We think that the south portion, Tract No. 2, was dedicated and consecrated to the sacred use of a public cemetery.
We agree with the Chancellor that the entire area enclosed by the fence from 1915 until 1962, Tracts No. 1 and No. 2, constituted a public cemetery and that the appellees are entitled to the unrestricted use thereof as such.
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Frank Holt, Associate Justice.
This appeal arises' from the imposition of a fine and jail sentence for violation of a restraining order.
The appellee was granted a divorce from appellant in January, 1960. She was awarded custody of their four minor children with appellant having certain visitation rights. In August, 1960, in another proceeding, the appellee and appellant settled their property rights and she was given exclusive use and occupancy of the homestead. A temporary restraining order was dissolved, leaving the appellant free to visit his children in appellee’s home. In January, 1963, the Chancellor granted appellee’s petition for a temporary restraining order, later made permanent, which enjoined the appellant from molesting the appellee in any manner in her use and occupancy of the homestead and, in particular, enjoined the appellant from (1) going into or about the home or premises, (2) removing, mutilating or destroying any of the furniture, (3) calling appellee on the telephone, (4) writing letters or notes to appellee, and (5) attempting to contact or communicate with her in any way. Shortly thereafter, the appellant entered a local beauty shop where appellee was seated as a customer and without any warning or provocation he struck her with his fist, breaking the cartilage in her nose causing profuse bleeding and requiring medical attention. He, also, made verbal threats of future harm. Appellant was convicted of assault and battery in a criminal proceeding. On that same day the Chancellor held him in contempt for violating the restraining order, assessing a jail sentence of 180 days and a fine of $1,000.00, suspending the jail sentence and $800.00 of the fine.
On appeal the appellant contends for reversal that assault and battery is a criminal offense which the Chancellor did not have jurisdiction to enjoin and did not enjoin. We do not agree. In Pace v. State, 177 Ark. 512, 7 S. W. 2d 29, we quoted with approval:
‘ ‘ The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of .order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. ’ ’
The fact that an act enjoined also happens to be a criminal offense does not affect the power of a court of equity to enforce its order and the criminal aspects of an act neither give nor oust equity of jurisdiction. Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4; Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. If it should be held that the imposition of a criminal penalty for violation of a law would deprive a court of equity of jurisdiction to enforce its orders then a person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law. Van Hovenberg v. Holman, 201 Ark. 370, 144 S. W. 2d 718. In the case at bar the guilt or innocence of the appellant in the criminal court in no manner affected the jurisdiction of the chancery court to enforce its restraining order.
The appellant next argues that the punishment is excessive. We disagree. In addition to physically attacking the appellee, the appellant violated the court’s restraining order in other particulars including calling her on the telephone and using threatening and abusive language. The court suspended the jail sentence and $800.00 of the $1,000.00 fine. The suspension of this much, of appellant’s punishment is, in effect, a complete remission of that part of the punishment and is not subject to revocation. Songer v. State, 236 Ark. 20, 364 S. W. 2d 155; Harrison v. Terry Dairy Products Co., 225 Ark. 953, 287 S. W. 2d 473; Stewart v. State, 221 Ark. 496, 254 S. W. 2d 55. Therefore, the net effect of appellant’s punishment is the payment of a $200.00 fine which most certainly is not excessive under the facts in the case at bar. Ex Parte, Dukes, 155 Ark. 24, 243 S. W. 863; Hickinbotham v. Williams, 228 Ark. 46, 305 S. W. 2d 841.
The appellant also contends that the court erred in depriving him of all rights to visit or communicate with his children. We find no merit in this contention. The Chancellor’s decree reads, in pertinent part:
‘ ‘ Further, that the rights of visitation with his children, heretofore granted to the defendant, be limited to such visitation as the children and the defendant may voluntarily agree upon. The defendant is not to go to the home of the plaintiff nor on or about the premises of the plaintiff’s home in the exercise of the right of visitation to see the children.”
The appellant insists that he have visitation rights with his children, ages 11, 12, 14 and 16, at the home of the appellee. Appellee has no objection to the right of appellant to see and be with his children other than in her home since, she contends, their difficulties stem from his presence there. We think the Chancellor’s order respecting visitation with his children was proper. Of course, the appellant is not precluded from applying to the Chancellor for a modification of the decree if he feels it is not sufficiently specific with reference to his visitation rights elsewhere.
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John B. Robbins, Judge.
Appellant Troy Rogers appeals from an order of the Boone County Chancery Court in a child custody proceeding which denied in part his request to consider evidence of events which pre-dated a previous child custody hearing and order. Mr. Rogers contends on appeal that the chancellor erred in refusing to consider this proof in determining the best interest of the child and deciding his petition for a change of custody. We find no error and affirm.
The history of this case shows that Mr. Rogers and appellee Laura Villines were divorced by decree on June 27, 1984. By agreement in 1985, Ms. Villines was given custody of the parties’ minor child, now approximately twelve years old. In 1989, Mr. Rogers was denied a change of custody. In July of 1990, he was awarded custody of the parties’ minor child upon a finding by the court that a change in circumstances had occurred and that it was in the child’s best interest that custody be placed with Mr. Rogers. However, in August of 1991 following a full evi-dentiary hearing the chancellor again awarded custody of the child to Ms. Villines. Then in June of 1992, Mr. Rogers filed another petition for change of custody, again alleging that a change in circumstances existed which warranted such change.
In March of 1993 a pretrial hearing was held in which Mr. Rogers sought to introduce certain depositions and affidavits which contained evidence of conduct and events which occurred prior to the August 1991 hearing and order. Mr. Rogers contended that this evidence should have been admitted to show that it was in the child’s best interest to change custody because of the mother’s life style. The trial court ruled, after reviewing all of the depositions and affidavits in question, that some of the evidence pertaining to events pre-dating the 1991 hearing was admissible but the balance was not admissible because the portions ruled inadmissible were “not of such importance that the child’s welfare requires they be admitted.” The trial court cited to proper authority that “under some circumstances evidence which was not presented before [the] court [could] not be asserted at a later hearing.” Swindle v. Swindle, 242 Ark. 790, 415 S.W.2d 564 (1967).
Mr. Rogers contends on appeal that all of the matter contained in these depositions and affidavits should have been admitted because the best interest and welfare of the child so required that it be considered.
On appeal from chancery court cases, this court considers the evidence de novo, and the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against a preponderance of the evidence. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). As stated in Greening v. Newman, 6 Ark. App. 261, 263, 640 S.W.2d 463, 465 (1982), the general rule regarding evidence is that if a litigant fails to develop his case fully when it is first heard upon its merits the law does not afford him a second chance by permitting him to bring in additional proof which might have been offered in the first instance. This court, as well as the supreme court, has held that although the best interest of the child is the controlling issue in custody cases, when a parent fails to produce evidence available to him at one hearing, he cannot rely upon that evidence in a later effort to win a change of custody. Swindle, supra; Greening, supra. A decree fixing the custody of a child is a final adjudication on conditions then existing and should not be changed afterwards unless on altered conditions after the decree was rendered or on material facts existing at the time of the decree, but unknown to the court, and then only if the welfare of child so requires. Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954); Phelps v. Phelps, 209 Ark. 44, 189 S.W.2d 617 (1945); Thigpen v. Carpenter, supra; Carters. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986); Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986).
In this case the chancellor reviewed the depositions and affidavits in question and ruled that portions of them were inadmissible. The trial court, citing Thigpen v. Carpenter, supra, found that some of the evidence in the depositions pertaining to conduct which pre-dated the August 1991 hearing and order was inadmissible because it was not of such importance that the child’s welfare required its admission. After carefully reviewing the record and the excluded evidence in question, we are unable to say the chancellor abused his discretion in the evidentiary ruling, nor that his decision is clearly against the preponderance of the evidence.
Ms. Villines argues on appeal that the issues involved in the present appeal are moot because the chancellor transferred jurisdiction to Florida. However, she fails to cite us to any argument or authority that the Arkansas Court of Appeals lacks jurisdiction to hear the present appeal. Assignments of error unsupported by convincing argument or authority will not be considered on appeal. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993). See also, Ark. R. App. P. 2; Ark. Sup. Ct. R. 1-2; see generally, Blosser v. Blosser, 2 Ark. App. 37, 616 S.W.2d 29 (1981).
Affirmed.
Pittman and Mayfield, JJ., agree. | [
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John B. Robbins, Judge.
By opinion filed March 2, 1994, we reversed the conviction of Billy Ray Johnson for the crime of possession of methamphetamine with intent to deliver. This decision resulted from our determination that appellant’s motion to suppress evidence seized in his arrest and search should have been granted. The state has now petitioned for rehearing, which we deny.
This case does not involve a challenge to the reliability of a known informant. At issue is the credibility of an anonymous tipster.
At the suppression hearing, Officer Terry Grizzle of the Ft. Smith Police Department testified that a secretary at the police station received an anonymous telephone call. The caller said that “Billy Ray [appellant] and Angela” were selling crank out of room 56 at the Stonewall Jackson Inn and that a blue van was being used in the drug sales. The police set up surveillance at the motel and recognized Angela Highsmith and appellant as they entered a blue van in the motel parking area. They did not see the room from which they came. The police stopped the van and a quantity of methamphetamine was found.
In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), an officer of the Montgomery, Alabama police department received an anonymous telephone call. The caller stated that the accused would be leaving a certain apartment within an apartment complex at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to a certain motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. The police officer and his partner traveled to the apartment complex and saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the building which contained the apartment identified by the caller. The officers observed the accused leave the building and enter the station wagon. The officers followed the vehicle as it drove for a distance of four miles, including several turns, along the most direct route to the motel which the caller had identified. After one of the offi cers requested a patrol unit to stop the vehicle, the vehicle was stopped just short of the motel. The United States Supreme Court held that independent corroboration by the police of significant aspects of the informant’s predictions imparted some degree of reliability to the other allegations made by the caller. The significance of the court’s reference to “predictions” was explained as follows:
We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id., at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information — a special familiarity with respondent’s affair. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. See id., at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
496 U.S. at 332.
We addressed a similar factual situation in Kaiser v. State, 24 Ark. App. 19, 746 S.W.2d 559 (1988). Randolph County officers had received information from Missouri officers that an informant had given them a tip that Kaiser would be traveling through Randolph County in a gray or silver 1979 Lincoln, license number KLN436, and would be carrying a pistol and either $25,000 cash or 50 pounds of marijuana. Acting on this information the vehicle was stopped by Randolph County officers. The propriety of the stop arose in the context of a forfeiture proceeding. We held that because the vehicle appeared within the predicted area and period of time, matched the description given and bore the predicted license plates, those details were sufficient indicia of the informant’s reliability to permit an investigatory stop of the vehicle. The supreme court reversed because the record did not otherwise show that the informant was reliable. Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988).
After being reversed in Kaiser, we retreated somewhat when confronted with a closely analogous factual situation. Lambert v. State, 34 Ark. App. 227, 808 S.W.2d 788 (1991). In Lambert the state police received an anonymous tip that a man named “Jerry” would be leaving the Hot Springs area at approximately 3:00 p.m. driving to Little Rock in a black truck with “Woodline Motor Freight” in orange letters on it, hauling a shortbed trailer, and that Jerry would have approximately 10 pounds of marijuana with him. The police set up surveillance between Hot Springs and Little Rock and at about 3:50 p.m. stopped a vehicle traveling toward Little Rock which met this description. We held that the facts corroborating the tip were insufficient in quality and quantity to give rise to a sufficiently reasonable suspicion to make the stop.
The facts corroborating the details disclosed by the anonymous informant in the case at bar were less in quality and quantity than those in Lambert v. State, supra, and less in quality than those in Alabama v. White, supra. Here, the only facts corroborated by the police before making an investigatory stop were the presence of appellant and Ms. Angela Highsmith on the premises of the Stonewall Jackson Inn and their possession of a blue van. Significantly missing was corroboration of any prediction of future behavior as existed in Alabama v. White, supra, or other such details as would demonstrate a special familiarity with appellant’s affairs.
Unless we overrule Lambert v. State, supra, it stands as a controlling precedent and requires a reversal of appellant’s conviction.
Jennings, C.J., Cooper and Mayfield, JJ., would grant rehearing. | [
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Judith Rogers, Judge.
The appellant, Sheldon Paul Man-giapane, was found guilty by a jury of theft of property, a class B felony, and was sentenced as an habitual offender to a term of twenty-five years in prison. For reversal, appellant contends that the trial court erred in accepting one of his prior convictions for the purpose of enhancing his sentence. We affirm.
The trial court found that appellant had been convicted of four previous felonies, and was thus subject to being sentenced under the enhancement provision found at Ark. Code Ann. § 5-4-501(b) (Repl. 1993). At issue in this appeal is a 1988 conviction from the Grant County Circuit Court for theft by receiving. Appellant’s argument on appeal is that the use of this conviction was improper because it was not shown that he was represented by counsel.
The proof presented by the State was the docket sheet from Grant County which contained the entry “B. Murphy appted - Bond set at $5,000 - Signature of def. & his father approved.” In conjunction with this document, the State offered the concomitant judgment showing that appellant pled guilty and was sentenced to a term of six years in the Arkansas Department of Correction. No mention of representation was made in the judgment.
It is settled that a prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel. Tims v. State, 26 Ark. App. 102, 760 S.W.2d 78 (1989). The principles which govern the resolution of the issue at hand were succinctly stated in Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989):
For the purpose of sentence enhancement... the State may prove a prior conviction by any evidence that satisfies the court beyond a reasonable doubt that the defendant was convicted or found guilty. On appeal, the test is whether there is substantial evidence that the appellant was previously convicted of the felonies in question.
Unless the records of prior convictions show that the defendant was represented by counsel, there is a presumption that the defendant was denied assistance of counsel, and the convictions cannot be used to enhance punishment under our habitual offender provisions.
Id. at 148, 777 S.W.2d at 845 (citations omitted).
In recent times we have dealt with this issue on three occasions. First, in Tims v. State, supra, the appellant had been convicted of DWI, fourth offense. We found error in the use of one of the previous convictions where the words, “Atty. O’Bryan,” appeared under a column for the name of the arresting officer. We deemed this designation as being too ambiguous to be relied upon to show that the appellant had been represented or had waived counsel. On the other hand, in Rodgers v. State, 31 Ark. App. 159, 790 S.W.2d 911 (1990), we upheld a conviction for DWI, fourth offense, where a challenge was made to two prior convictions evidenced by documents containing the entries “Jeff Duty, Atty.” We sustained the use of these convictions because the clerk of the court from which the convictions were obtained explained that the entries signified that Jeff Duty had been appointed as defense counsel. In Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993), we found proof of representation lacking where the two docket sheets in question listed the respective names of Richard Lewallen and Susan Wilson under the column designated “Atty.” As in Tims, supra, we considered those listings to be too ambiguous, standing alone, to support a finding that the appellant was represented or had waived counsel. The distinction between the decisions in Tims and Neville, and the decision in Rodgers, is that in Rodgers the docket entries were supplemented with other proof of representation.
In the case at bar, the trial court allowed the usage of the Grant County conviction finding that the entry “B. Murphy appted. . . .” indicated that an attorney had been appointed to represent appellant. In so finding, the trial court took note of the fact that prosecutors are not appointed. The court also reasoned that appellant was represented at the time the guilty plea was accepted since the docket contained no entry showing that counsel had been relieved.
As in the cases discussed above, we are not faced with a silent record from which representation or the waiver of counsel cannot be presumed. The question here is whether there is substantial evidence to support the trial court’s determination that appellant was represented by counsel in the earlier proceeding. We consider this case as falling somewhere between the decisions in Tims and Neville on one end of the spectrum, and Rodgers on the other. From our review, however, we conclude that the trial court’s finding is supported by substantial evidence. The docket sheet in question includes an express notation from which it can reasonably be inferred that counsel was appointed to represent appellant. We also cannot disagree with the trial court’s conclusion that representation continued throughout the course of the proceedings since there was no entry showing that counsel had been dismissed. Accordingly, we affirm appellant’s conviction and the sentence imposed therefor.
Affirmed.
Pittman and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant filed a complaint seeking to vacate an unfavorable award granted by an arbitration panel. The trial judge declined to vacate the arbitration award, finding that the appellant failed to raise a substantive issue sufficient to avoid the arbitration procedure and the finality of the award. From that decision, comes this appeal.
For reversal, the appellant contends that the court erred in dismissing his motion to vacate the arbitration award without first allowing him to engage in discovery proceedings or giving him an evidentiary hearing. We find no error and affirm.
In 1982, the appellant made an investment with the appellees. The appellant’s investment was eventually lost, and he sought damages through arbitration in the amount of $75,655.00, contending wrongful conduct on the part of the appellees. An arbitration panel comprised of Harvey Bell, Garland Binns, and Mr. Harkins (hereinafter referred to as “Panel 1”) was formed to decide the appellant’s claim, and Binns was elected chairman. At Panel l’s hearing of the claim, the appellant appeared pro se and was allowed to present testimony and to introduce documentary evidence. After the hearing was concluded, but before a decision was handed down, arbitrator Harvey Bell questioned the role of the National Association of Security Dealers (NASD) in the selection of Panel 1. He contended that Chairman Binns, who had been appointed as a public arbitrator, should have been classified as a securities industry arbitrator. Mr. Bell also alleged that Binns had made evidentiary decisions without a two-thirds vote of the panel. Because of Mr. Bell’s allegations, which could have resulted in questions being raised after a decision by Panel 1, the arbitrators of Panel 1 resigned without making an award and decided the matter should be referred to a newly-constituted panel (hereinafter referred to as “Panel 2.”) By a letter dated August 10, 1989, NASD attorney John Barlow informed the parties of the alleged problems with Panel 1 and the need for the appellant’s claim to be reheard by a second panel. Among other things, his letter advised the parties that Harvey Bell had questioned Mr. Binns’ status as a public arbitrator and that Mr. Bell felt that the entire panel did not participate in the evidentiary decisions as required by the Code of Arbitration Procedure.
In response to this letter, the appellant wrote to Mr. Barlow and suggested that the second panel review the exhibits and taped recordings from the first hearing held before Panel 1 rather than hold another hearing. Mr. Barlow then sent the parties a second letter which advised them of the appellant’s suggestion.
The parties were later advised of the names of the arbitrators who were to comprise Panel 2. There being no objection, Panel 2 met and reviewed the tapes and exhibits from the first hearing, determined they were adequate for a decision, and that there was no reason to see the parties in person or request further testimony. Panel 2 then rendered its decision dismissing the appellant’s claim.
The appellant filed a complaint in the Boone County Circuit Court, seeking to vacate Panel 2’s award, obtain a full evi-dentiary hearing with regard to the conduct of the arbitration proceedings in Cause No. 88-00359, and after such hearing, for his cause to be remanded for arbitration in a fair, just, and impartial manner. The appellant alleged that he had proceeded with arbitration in front of Panel 1 with the true bias, prejudice, and the background of the panel members hidden and camouflaged from him; that such bias and prejudice had impacted the conduct of the entire proceedings, including but not limited to the introduction and rejection of evidence as well as the deliberations of the panel; that Harvey Bell had informed the NASD that the appellant had not received a fair and impartial hearing but that such information was not divulged to the appellant; and that he was merely informed that there had been procedural irregulari ties in the formation of Panel 1 and they had therefore resigned without rendering an award.
The appellant also filed an affidavit which was considered by the court in making its determination. The affidavit repeats the allegations in the appellant’s complaint to vacate and adds that, since the rendition of his award, he, along with Harvey Bell, had been interviewed for the ABC program “20/20,” and, in the course of that interview, he learned that Bell had filed a dissent in connection with the hearing held by Panel 1 and had made a statement to the “20/20” interviewer that the appellant had not received a fair hearing.’
In his affidavit, the appellant also states that the “20/20” video program was shown in June 1990. It is clear from the video that Harvey Bell was not aware that the appellant had been given a second hearing at the time he was interviewed. On March 11, 1993, the trial court entered its order denying the appellant’s motion for an evidentiary hearing and confirming the arbitration award.
On appeal, the appellant asserts that the trial court erred in dismissing his motion to vacate without allowing him to engage in discovery or giving him an evidentiary hearing. Judicial review of an arbitration award is more limited than appellate review of a trial court’s decision; whenever possible, a court must construe an award so as to uphold its validity. Arkansas Dep’t of Parks and Tourism v. Resort Managers, Inc., 294 Ark. 255, 260, 743 S.W.2d 389 (1988).
The fact that parties agree to submit their disputes to arbitration implies an agreement to be bound by the arbitration board’s decision, and every reasonable intendment and presumption is in favor of the award; it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or misfeasance or malfeasance. Unless the illegality of the decision appears on the face of the award, courts will not interfere merely because the arbitrators have mistaken the law, or decided contrary to the rule of established practice as observed by courts of law and equity, Alexander v, Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943); Kirsten v. Spears, 44 Ark. 166 (1884).
McLeroy v. Waller, 21 Ark. App. 292, 294, 731 S.W.2d 789 (1987). Generally, Arkansas follows other states’ courts in discouraging setting aside arbitration awards. See Department of Parks v. Resort Managers, 294 Ark. at 260. Arkansas Code Annotated § 16-108-212(a) (1987) provides in part:
(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;. . .
In Arkansas Department of Parks & Tourism v. Resort Managers, supra, the Court explained “undue means”:
[U]ndue means . . . means something akin to fraud and corruption. “Undue means” goes beyond the mere inappropriate or inadequate nature of the evidence and refers to some aspect of the arbitrator’s decision or decision-making process which was obtained in some manner which was unfair and beyond the normal process contemplated by the arbitration act.
Id. at 260 (quoting Seither & Cherry Co. v. Illinois Bank Bldg. Corp., 95 Ill. App. 3d 191, 419 N.E.2d 940 (1981)).
Although the appellant makes no contention that Panel 2 was biased or prejudiced against him, he argues that he was not given a fair hearing because Panel 2’s decision was based on the record made in the first hearing; however, it is well established that the interest, partiality, or bias which will overturn an arbitration award must be certain and direct, and not remote, uncertain or speculative, and the party attempting to set aside the award bears the burden of proof to establish partiality. Dean Witter Reynolds, Inc. v. Deislinger, 289 Ark. 248, 251, 711 S.W.2d 771 (1986). The trial court found that the appellant failed to demonstrate a factual nexus between Panel 1 and Panel 2, stating that:
It is axiomatic that if Plaintiff is to prevail that he must show and legally demonstrate a factual nexus between the second arbitration panel and the first arbitration panel of such a character as to taint the entire arbitration procedure. Indeed the factual nexus must prove such abuse, prejudice or pervasive misconduct that the decision of the second panel would be nullity.
However, contrary to the factual assertions by the Plaintiff and conceding the propriety of the second panel by both parties, the Court finds the following to be shown by the record — specifically the decision by the second panel of arbitrators:
1. That Plaintiff initiated the second proceeding and specifically recommended the procedure of reliance on the exhibits and cassette tapes by the second panel; and
2. That the Plaintiff was certainly placed on notice of problems of potential issues with respect to the initiál panel, but chose not to require any further explanation; and
3. That the new panel independently considered the evidence and considered the submitted evidence to be adequate and no further testimony was needed.
Defects in proceedings prior to or during arbitration may be waived if a party acquiesces to the arbitration with knowledge of the defects; moreover, if the impeaching party’s own action contributes to a variance from the prescribed procedure, such party may be estopped to complain of the variance. Gibbons v. United Transportation Union, 462 F. Supp. 838, 842 (E.D. Ill. 1978). When the reasons supporting an objection are known beforehand, failure to object will not be excused. Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1359 (6th Cir. 1989), cert. denied, 495 U.S. 947 (1990). The successful party in a grievance may not rely on the failure to object for bias, however, unless all the facts now argued as to the alleged bias were known as the time the joint committee heard their grievances. Id. at 1358-59. We hold that the trial court did not err in holding that the appellant failed to establish a factual nexus between Panels 1 and 2.
Nor do we think the chancellor erred in refusing to allow the appellant an evidentiary hearing. The appellant has failed to show how deposing Harvey Bell would show any bias or prejudice on the part of the second panel. A court is not required to permit discovery in order to allow a party seeking to vacate an arbitration award to determine whether arbitrators disregard the law in reaching an award. See O.R. Securities, Inc. v. Professional Planning Assoc., Inc., 857 F.2d 742, 748-49 (11th Cir. 1988). If a court is to vacate an arbitration award on the basis of a manifest disregard of the law, there must be some showing in the record that the arbitrator knew the law and expressly disregarded it; a party seeking to vacate an arbitration award on the ground of manifest disregard of the law may not proceed by merely objecting to the results of the arbitration. Id. at 747.
In denying the appellant’s request for an evidentiary hearing, the trial court stated:
The proper conduct of review in this case requires that the issue of the demand for an evidentiary hearing be resolved preliminarily. Under the factual content it is readily apparent that the limited focus of an evidentiary hearing would be to discover or to explore the issue of bias or prejudice by the original arbitrators. Such a hearing would then be premised upon the existence of a pervasive taint originating in the first hearing and its having adversely impacted the second hearing. The court finds from a complete and concerned review of all things — pleadings, exhibits, arbitration award, affidavit of Plaintiff, letters of arbitration panel, and the dissenting opinion of Harvey L. Bell, Arbitrator — that the single factual component is the statement in the latter opinion that, “Mr. Binns, as Chairman, ruled on the introduction or rejection of evidence without the formal vote of two-thirds of the panel.” The Court so holds, being mindful of blanket statements of bias and prejudice, but the Court cannot and the Plaintiff has not, shown how any other issue of taint could transfer itself from one hearing to another.
The appellant cites Legion Insurance Co. v. Insurance General Agency, Inc., 822 F.2d 541 (5th Cir. 1987), for the proposition that evidentiary hearings are required where a party’s motion challenges the misconduct or bias of an arbitrator. In that case, the appellant claimed the district court’s failure to take evidence other than that submitted in the motion severely prejudiced its ability to present the merits of its claim. Although the court affirmed the district court’s denial of a hearing, it stated in dictum: “We recognize that some motions challenging arbitration awards may require evidentiary hearings outside the scope of the pleadings and arbitration record. . . . Such matters as misconduct or bias of the arbitrators cannot be gauged on the face of the arbitral record alone.” 822 F.2d at 542-43. The court went on to state:
The error in Appellánt’s argument with respect to its case is exposed by the remedy it would adopt. Although it asserts no fact sought to be proved if we were to remand for evi-dentiary development, appellant suggests it would depose “anyone present” at the arbitration proceeding, including the arbitrators, to “recreate the evidence presented as completely as possible.” Appellant’s bases for vacating or modifying the arbitration award amounted, however, to evidentiary challenges and unsupported assertions that the arbitrators imper-missibly calculated the award. Courts have repeatedly condemned efforts to depose members of an arbitration panel to impeach or clarify their awards. To permit time-consuming, costly discovery simply to replicate the substance of the arbitration would thwart its goal. The statutory bases for overturning an arbitral tribunal are precisely and narrowly drawn to prohibit such complete de novo review of the substance of the award, as distinguished from gross calculation errors or inadequacies in the makeup of the tribunal itself. The district court was well within its discretion to dispose of the issues before it on the record submitted by the parties.
Arbitration proceedings are summary in nature to effectuate the national policy favoring arbitration, and they require “expeditious and summary hearing, with only restricted inquiry into factual issues.” This case posed no factual issues that required the court, pursuant to the Arbitration Act, to delve beyond the documentary record of the arbitration and the award rendered. Discovery of the sort desired by IGAI would result in the court’s reviewing the factual and legal accuracy of the award, a task this circuit has foreclosed.
Id. at 543 (citations omitted).
The appellant also relies on Andros Compania Maritima v. Marc Rich & Co., 579 F.2d 691 (1978), in which the appellant moved to vacate an arbitration award and sought an evidentiary hearing. In affirming the district court’s denial of an evidentiary hearing, the appellant Marc Rich claimed that one of the arbitrators, had failed to disclose information that might have created an impression of bias and that the district court denied him an adequate opportunity to present his claim that the arbitrator had not made a full and fair disclosure. The court noted, however, that the appellant in that case had not demonstrated that the arbitration award should be set aside, but only that it was denied a chance to show why it should be done.
Judge Brieant obviously regarded Marc Rich’s petition as a classic example of a losing party seizing upon “a pretext for invalidating the [arbitration] award.” Commonwealth Coatings, supra, 393 U.S. at 151, 89 S.Ct. at 340 (White, J., concurring). We believe that the judge properly denied discovery on this issue and was justified in refusing to explore it further.
In so deciding, we do not dispute the authorities maintaining that the discovery procedures of the Federal Rules of Civil Procedure are generally applicable to Title 9 proceedings. But in the special context of what are in effect post hoc efforts to induce arbitrators to undermine the finality of their own awards, we agree with the district court that any questioning of arbitrators should be handled pursuant to judicial supervision and limited to situations where clear evidence of impropriety has been presented.
Id. at 702-03 (citations omitted). Given the absence of clear evidence of impropriety with respect to Panel 2, we cannot say that the trial judge erred in denying the appellant’s request for an evi-dentiary hearing.
Affirmed.
Jennings, C.J., and Robbins, J., agree. | [
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s decision finding that appellant failed to prove by a preponderance of the evidence that he was entitled to receive permanent partial disability benefits. On appeal, appellant contends that the Commission erred in its interpretation and application of Ark. Code Ann. § 1 l-9-704(c)(l) (Supp. 1993) and that the Commission erred in not considering new evidence. We disagree on both points and affirm.
The record reflects that appellant sustained a compensable injury in the course and scope of his employment with appellee on November 28, 1989. According to appellant, he was attempting to separate two kiln trucks, when he felt a sensation which he testified “felt like somebody had thumped him in the right testicle.” Appellee accepted appellant’s injury as compensable. Dr. Dale Gullett examined the appellant and could not determine the source of appellant’s pain. Dr. Gullett referred appellant to Dr. John Hearnsberger. Dr. Hearnsberger discovered an inguinal hernia and operated to repair it. Appellee paid for the cost of the surgery to repair appellant’s hernia. After the surgery, the appellant continued to complain of pain and was off work drawing temporary total disability benefits. Six weeks after appellant’s surgery, appellee ceased payment of temporary total disability benefits.
Appellant filed a claim for additional benefits contending that he was entitled to permanent partial disability benefits based upon a ten percent rating by Dr. John R. Gregory. Appellee controverted any additional benefits other than those paid for the work-related hernia. The administrative law judge denied benefits. The Commission reviewed the case and denied benefits and appellant’s request for the Commission to consider newly discovered evidence.
Appellant appealed the Commission’s decision. We issued an unpublished opinion on December 23, 1992, remanding the case for the Commission to reconsider its decision in light of our recent opinion in Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992). The Commission reconsidered the case in light of Keller, and again denied benefits. This appeal followed.
Where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). In conducting our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994). However, the Commission is not bound by medical opinion, although it may not arbitrarily disregard the testimony of any witness. It is also entitled to examine the basis for a doctor’s opinion in deciding the weight to which that opinion is entitled. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992).
Appellant argues that the Commission erred in its interpretation and application of Ark. Code Ann. § ll-9-704(c)(l) (Supp. 1993), contending that the Commission construed the statute strictly by requiring the determination of the existence of an “abnormality.” We disagree.
Arkansas Code Annotated § ll-9-704(c)(l) provides in part that “any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.” The Commission found that appellant failed to present objective medical evidence to support his claim, as required by Ark. Code Ann. § 1 l-9-704(c)(l). The Commission explained that in considering claims for permanent partial disability the first determination is:
[WJhether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker. Then, if we determine that an abnormality has produced a permanent physical impairment, we must also evaluate the evidence to determine the extent of the impairment. With regard to both of these determinations, Ark. Code Ann. § ll-9-704(c)(l) (1987) provides that ‘[a]ny determination of-the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.’ Therefore, Ark. Code Ann. § 11-9-704(c)(l) provides a specific element of proof which must be found before the Commission can find the existence or extent of a permanent physical impairment.
(Emphasis added.) After considering this case in light of Keller v. L.A. Darling Fixtures, supra, the Commission determined that there was no objective and measurable findings to support a finding of the existence of an impairment.
The record contains an extensive medical history of examinations and treatments by at least six doctors, including an orthopedic physician and three other specialists, none of whom could propose an explanation for the source or cause of appellant’s pain. After appellant’s hernia repair, Dr. Hearnsberger’s records indicate that appellant was complaining of “recurrent pain” which appellant maintained was “exactly the same pain he had prior to his operation.” Consequently, Dr. Hearnsberger concluded that the hernia was not the cause of the pain appellant began experiencing in November of 1989. Dr. Hearnsberger’s report on February 19, 1990, indicates that he was unable to determine the source of appellant’s pain.
The record also reflects that appellant was examined by Dr. T. M. O’Gorman, a urologist, on April 13, 1990. Dr. O’Gorman noted that he could “find absolutely no abnormality of the [right] testicle” and that the testicle was not tender to palpation. Appellant was also referred to Dr. John R. Gregory, an orthopedic physician. Dr. Gregory performed an x-ray, a myelogram, a CT scan, an MRI, and a diskogram. All of these tests revealed normal findings. It appears from the evidence presented that the only source of information for Dr. Gregory’s evaluation and his determination of a ten percent permanent partial disability rating is the appellant’s complaint of pain and appellant’s response of being in pain during the functional evaluation test.
Appellant and his wife testified that appellant had no significant physical problems prior to the incident on November 28, 1989. However, the evidence presented shows that appellant sought treatment from Dr. Mark Floyd, his regular physician, on October 19, 1989, for complaints of right testicular and groin pain. Appellant also testified on January 4, 1991, that he continued to feel a burning and throbbing sensation in his right testicle. According to appellant, he was never free of pain and physical activity exacerbates the pain. However, the record indicates that since September of 1990, appellant has been employed driving a truck ten to twelve hours a day, five to six days a week. The record also reflects that the recurrence of appellant’s pain occurred shortly after a dispute arose between appellant and appellee because appellant’s temporary total disability had been discontinued after he was observed driving a log truck and unbinding his load.
The Commission reviewed the case in light of Keller and determined that appellant failed to prove that he sustained a permanent physical impairment. The Commission emphasized that there was no objective evidence in the record to prove the existence of any underlying damage which would substantiate appellant’s complaints of pain. The Commission noted that appellant had been performing work after his hernia repair; therefore, it is implicit from the Commission’s opinion that it found appellant’s complaints of constant pain unbelievable. After reviewing all the evidence in the record, we cannot say that there is no substantial basis for the Commission’s denial of permanent partial disability benefits.
The dissent appears to agree with the appellant that the use of the word “abnormality” establishes an additional requirement under Ark. Code Ann. § ll-9-704(c). We do not think that this assumption is correct. The Commission chose to use the word “abnormality” to reflect an underlying cause producing the appellant’s alleged pain. Arkansas Code Annotated § ll-9-704(c) requires that any determination of the existence of a physical impairment shall be supported by objective and measurable findings. Although the Commission chose to use the medical term “abnormality” in describing the existence of an impairment, it did not establish an additional requirement under Ark. Code Ann. § ll-9-704(c).
Appellant also argues that the Commission erred by not considering newly discovered evidence, specifically a report by Dr. John Bomar, a chiropractor. Whether to remand for taking additional evidence is a determination within the Commission’s discretion; on appeal an exercise of that discretion will not be lightly disturbed. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). A case should be remanded only if the newly discovered evidence is relevant, is not merely cumulative, would change the result, and was diligently discovered and produced by the movant. Id. In our unpublished opinion remanding this case back to the Commission, we stated that appellant could renew his request for reconsideration of Dr. Bomar’s report. The record reflects that appellant did not renew his request; therefore, we decline to address this issue.
Affirmed.
Jennings, C.J., concurs.
Mayfield, "J., dissents.
While not applicable to the case before us, we note that Ark. Code Ann. § 11-9-704(c)(3) was amended in 1993. The amendment substituted the word “strictly” for the word “liberally” and became effective on July l, 1993. | [
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Melvin Mayfield, Judge.
This is an appeal brought by the State to challenge an order of the trial court that dismissed all charges against the appellee, Joseph Fore, on the basis that the affidavit for the arrest warrant did not show probable cause to justify the issuance of the warrant. The appeal is brought under the authority of Rule 36.10(b)-(c) of the Arkansas Rules of Criminal Procedure.
The trial judge based his decision on Fairchild v. Lockhart, 675 F. Supp. 469 (E.D. Ark. 1987), in which it was held that an arrest warrant “rubber-stamped” by a clerk of the court at the prosecutor’s behest cannot meet the test of constitutionality which requires a determination by a neutral and detached magistrate that probable cause for the warrant exists. 675 F. Supp. at 478. The petitioner in Fairchild sought habeas corpus relief following a state court conviction for the murder and rape of Marjorie Mason. In making that decision the opinion in Fairchild examined the question of whether there was probable cause for the issuance of an arrest warrant for the petitioner for the attempt to kill Little Rock police officer, Joe Oberle. This question was involved because it was alleged that the Oberle arrest was illegal and that this affected the Mason conviction for the reason that Fairchild had confessed to the Mason crime after he was arrested on the Oberle warrant. Because the affidavit for Ober-le’s warrant was conclusory, recited no underlying circumstances supporting the affiant-officer’s belief that Fairchild was involved in the Oberle assault, no information regarding the identity or reliability of the informants, and no corroborating circumstances in support of any informant’s tips the judge concluded that the affidavit failed to establish probable cause for the issuance of the arrest warrant. The judge also determined that the “rubber-stamping” of the arrest warrant resulted in a failure of the real warrant-issuing authority to meet the necessary requirements of detachment and neutrality because that authority had actually been the prosecutor. Nevertheless, the judge went on to examine whether there was probable cause for the warrantless arrest of Fairchild for the murder of Marjorie Mason and determined that there was probable cause for that arrest, 675 F. Supp. at 488, and the petition for habeas corpus was denied.
Relying on a portion of the reasoning of the judge in Fairchild, the trial judge in the instant case held that the affidavit for the arrest warrant in this case was deficient, that the arrest here was invalid, and that the charges had to be dismissed. The judge stated that the affidavit on which the arrest warrant was based did not identify the affiant’s informant or establish why the informant’s information was credible; that there was no corroboration of the affiant’s allegations; and that, although the affidavit was clearly detailed, it was not accompanied by supporting statements. The judge’s order of dismissal states that “none of the indicia of reliability are present in the affidavit” and that the clarity of detail “standing alone in the face of all the defects” does not provide a substantial basis for the issuing magistrate’s decision.
The State argues on appeal that the trial court erred, as a matter of law, in dismissing the charges. The State contends that an illegal arrest is not grounds for dismissal of criminal charges. We think the State’s argument is valid. In United States v. Crews, 445 U.S. 463 (1980), the United States Supreme Court held that “an illegal arrest, without more, has never been viewed as a bar to a subsequent prosecution, nor as a defense to a valid conviction.” 445 U.S. at 474. Moreover, in State v. Block, 270 Ark. 671, 606 S.W.2d 362 (1980), cert. denied, 451 U.S. 937 (1981), the trial court dismissed criminal charges because the arresting officer had entered the defendant’s home without an invitation or warrant, and the Arkansas Supreme Court reversed and remanded for trial stating that it was “unthinkable” that a person should go scot free because an officer enters his home without an invitation and arrests him without a warrant. The court quoted a footnote from Peyton v. New York, 445 U.S. 573 (1980), that said, “The issue is not whether a defendant must stand trial, because he must do so even if the arrest is illegal.” Id. at 592. And in State v. Holcomb, 271 Ark. 619, 609 S.W.2d 78 (1980), the defendant had been arrested without a warrant, tried and convicted, but the conviction was reversed on appeal. On remand, Holcomb filed a pretrial motion to dismiss claiming that he could not be prosecuted because his warrantless arrest violated his Fourth and Fourteenth Amendment rights. The trial court agreed and dismissed the charges. The State appealed arguing that an illegal arrest does not bar prosecution. The Arkansas Supreme Court agreed and cited State v. Block, supra. In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), our supreme court again stated, “We have held many times that an illegal arrest does not necessarily invalidate a conviction” and cited Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); and Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).
The Arkansas Court of Appeals has made the same holding. In Urquhart v. State, 30 Ark. App. 63, 67-8, 782 S.W.2d 591, 594 (1990), the defendant argued on appeal that the lower court erred in denying his motion to dismiss based on the alleged invalidity of the warrant issued for his arrest. We cited United States v. Crews, supra, for the rule that an illegal arrest is not grounds for dismissal of charges and citing Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989), which cited Pipes v. State, 22 Ark. App. 235, 738 S,W.2d 423 (1987), we said, “An invalid arrest may call for the suppression of a confession or other evidence but it does not entitle the defendant to be discharged from the responsibility for the offense.” See also Whitaker v. State, 37 Ark. App. 112, 117, 825 S.W.2d 827, 831 (1992).
Appellee contends that this argument was not presented to the trial court, and cites State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991), for the proposition that, even if the decision of the trial court was erroneous, the appellate court will not reverse if the State did not object on the proper grounds below. In that case the defendant, who had been charged with recklessly failing to take action to prevent the abuse of a child, filed a motion to dismiss the charges claiming that the State could not prove she was a “parent, guardian, or person legally charged with the care or custody of a child.” After a hearing at which the State made a proffer of the evidence it expected to produce at trial, the circuit judge dismissed the charge. On appeal by the State, the Arkansas Supreme Court stated:
While we agree with the state that it was error to dismiss the subject count of the information based upon a proffer of “facts,” we do not agree that the court lacked subject matter jurisdiction. Jurisdiction is the power of the court to hear and determine a cause, including the power to enforce its judgment; it is the power to hear and determine the subject matter in controversy between the parties. . . .
We do not suggest the state concurred in any manner to the dismissal of this case. But it is evident the state did not object on the basis now argued. The ground of the state’s objection, as we interpret the record, was that the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care or custody of [the child]. Had the state objected on the ground that the “facts” could be determined only by means of a trial and not by way of a proffer at a pretrial hearing, presumably the error would not have occurred.
307 Ark. at 335-36, 820 S.W.2d at 60-61 (citations omitted).
We think Watson is clearly distinguishable from the case now before us.- Here, the issue is whether the lower court properly dismissed the criminal charges based on a deficient affidavit for the arrest warrant, and the State did, in fact, present to the trial court the contention that an illegal arrest is not grounds for dismissing the charges against a criminal defendant.
The State’s brief abstracts, largely with quotes from the record, the colloquy between court and counsel as to this issue. Co-defendants had filed motions to “quash and dismiss” the arrest warrants issued against them and the trial court allowed defendant Fore, the appellee here, to orally join in his co-defendants’ motions. At the hearing on the motions, the trial judge told the attorneys that he wanted to hear opening statements. After a defense counsel had addressed the judge, a deputy prosecuting attorney responded as follows:
Your Honor, I’m not quite actually sure where to begin, but what you just heard is argument on the evidence that the State intends to produce at trial. First is the affidavit. I haven’t heard any testimony in support of the argument that we just heard that would tend to prove that what was alleged in the affidavit is not what was sworn to before another competent Judge. Second, the affidavit and any subsequent information are two separate propositions. Third, this same issue has come up before in previous hearings before this Court last year and we had some discussions, I don’t know that any formal ruling was issued, but the filing of the information stands on its own. And I’m kind of at a loss to be real honest to - -
THE COURT: Well I think, excuse me, I didn’t mean to cut you off. I thought you had stopped. But I think the basis, the core of Mrs. Grinder’s motion is that Officer Swesey is incompetent to support, his affidavit is incompetent to support probable cause. And I think that’s - -
MR. JEGLEY: Okay.
THE COURT: - - very clear that’s what she’s saying.
' MR. JEGLEY: Well I agree, your Honor, and I don’t know that without more what in the world the Court would choose to interpose its judgment over that of the Pulaski Municipal Court which in and of itself had the affiant before him and had opportunity to - - This affiant was sworn in and unless they are prepared to prove the propositions they are arguing about then I would submit, your Honor, that the matter stands before the Court as mere argument. There’s nothing to support their position before the Court.
THE COURT: Okay. Mr. Jegley, essentially I understand you to say that a defendant cannot put the State to its proof by filing a motion to dismiss?
MR. JEGLEY: I’m saying that this is their motion and that this matter has been brought üp before this Court before, your Honor.
THE COURT: And I thought you said without a formal ruling.
MS. GRINDER: That’s correct.
MR. JEGLEY: And I don’t know, I don’t think that, I think that in filing their motion they have to be prepared to go forward to prove up their motion to the Court. And then - -
THE COURT: Oh, no question about that. I am not saying the burden shifts to you because they filed the motion.
MR. JEGLEY: And I mean we’re prepared to prove our case up at trial certainly and that’s basically what we’re talking about in the sum and substance of this.
THE COURT: Okay.
MR. JEGLEY: I mean there’s two sides to all these criminal cases.
THE COURT: No, sir. Your burden at this point once she goes forward your burden is to prove the adequacy of the affidavit to support probable cause and that’s whey [why] we’re here today as I understand it. She’s attacking the adequacy of probable cause.
MR. JEGLEY: By argument, your Honor. We haven’t had a witness before us.
THE COURT: Oh, certainly. No I asked for opening statements from both of you.
MR. JEGLEY: Okay.
THE COURT: And that’s where we are.
MR. JEGLEY: Okay.
THE COURT: And I’m waiting to hear your statement.
MR. JEGLEY: My statement is, your Honor, the motion is not well taken. That the case cited Fairchild versus Lockhart is not on point as argued and I would also tell the Court at this point that, advise the Court that the civil actions in this don’t have any relevance whatsoever. And I don’t know who was subpoenaed or who wasn’t subpoenaed and I know that we’ve heard some argument ábout what proof there is and she knows which case, what the case file contains. So I think it is meritless, your Honor, and I think the motion should be denied.
THE COURT: All right. Are you ready, Ms. Grinder?
The trial court then heard testimony presented by defense counsel. At the conclusion of this evidence, the judge asked the deputy prosecutor if he was prepared to go forward and was told, “Well, your Honor, we can stand on the affidavit.” Other discussion between court and counsel ensued, and the prosecutor again told the court that “once the affidavit question is over with we have a felony information.” The trial judge, however, ended the hearing with the statement that “in order for the search warrant to stand you have to show that the reviewing officer, the judge, did more than just rubber stamp.” He then said he would take the issue under advisement and subsequently an order was entered which quashed the arrest warrant and dismissed the information.
It seems fairly clear that the deputy prosecuting attorney advised the trial judge of the State’s contention that regardless of whether there was probable cause for the issuance of the arrest warrant the defendant was charged by a felony information, and the case of Fairchild v. Lockhart, was not authority for dismissing charges simply because the arrest warrant had not been properly issued. The prosecutor said that “the affidavit and any subsequent information are two separate propositions.” He said “this issue has come up before in previous hearings before this Court last year and we had some discussions, I don’t know that any formal ruling was issued, but the filing of the information stands on its own.” He said “the motion is not well taken” and that “Fairchild versus Lockhart is not on point as argued.” And he told the trial court that “once the affidavit question is over with we have a felony information.”
Nevertheless, the trial court clearly took the position that the issue involved was whether the affidavit was adequate to establish probable cause for the issuance of the arrest warrant. Although there was discussion about the sufficiency of the affidavit, the trial judge was informed that the State took the position that the affidavit question and the felony information were two separate propositions. Thus, we think that State v. Watson, supra, relied upon by appellee Fore, is distinguishable from the instant case. There the State argued on appeal that the trial court did not have jurisdiction to dismiss the information charging the defendant with failing to take action to prevent the abuse of a child, but the issue presented to the trial court was “that the proffered evidence was sufficient to sustain the allegation that Ms. Watson was legally charged with the care and custody of [the child].” Here, the State argued in the trial court (and now argues in this court) that this affidavit for the search warrant and the felony information are two separate propositions. The State is right; Fairchild v. Lockhart does not hold that the charges should be dismissed if the arrest warrant is not properly issued; the trial court erred in its view of the law, and we do not think the State failed to advise the court of the State’s contention that insufficiency of the affidavit for the arrest warrant did not mean that the information should be dismissed.
Reversed and remanded.
Jennings, C.J., and Rogers, J., agree. | [
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Ed. F. McFaddin, Associate Justice.
This suit involves some of the streets and driveways in Parkview Subdivision to the City of El Dorado. The plaintiffs below, and appellants here, are the original dedicator, Mrs. Marguerite Trull McWilliams, and other parties holding deeds which described some of the property shown as being dedicated streets. The defendant below was the City of El Dorado. Various property owners claiming interests adverse to the plaintiffs intervened and resisted the complaint, claiming that intervenors’ vested property rights would be adversely affected by granting relief to the plaintiffs, and also pleading laches, estoppel, and stale demand. They are listed as appellees here, along with the City of El Dorado.
The plaintiffs sought to have cancelled a plat and dedication of streets and ways that had been filed in 1942. The Trial Court denied any relief to the plaintiffs and this appeal ensued. It was shown that in 1942 Mrs. Marguerite Trull McWilliams (one of the plaintiffs), and other parties, owned as acreage certain property in the City of El Dorado, and decided to plat the property into lots and blocks and offer it for sale as Parkview Subdivision. The plat filed in May 1942 was duly recorded in the Deed Records of Union County; and an instrument of dedication was likewise recorded, dedicating' to the public all the streets, alleys, and drives shown on the said plat. The City of El Dorado, by proper action, accepted the deed of dedication on September 24,1942. On October 25, 1943, an additional dedication was made by Marguerite Trull McWilliams, as the landowner, dedicating a street 40 feet wide through the center of Block “A”. The original plat, along with the dedication of the 40-foot street, was shown in the abstracts of various parties who purchased property in the subdivision; and the intervenors claim, either by direct or mesne conveyances, from the original owners who filed the plat and made the dedication.
In January 1959 there was decided by this Court the case of Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655, involving some of the same streets and driveways in the Parkview Subdivision to El Dorado as here involved. As a result of that case some of the present appellants realized that they were occupying property that was dedicated as public streets and ways according to the said plat of Parkview Subdivision. The present suit was filed on June 20, 1961, to have the original plat and also the so-called “corrected plat” of Parkview Subdivision, can-celled, as filed through mistake, so that the only dedication would be the 40-foot roadway through the center of Block “A”. The effect of a decree for the plaintiffs would be to take from the public and return to the plaintiffs, as their interests might appear, a strip of property 70 feet wide and several hundred feet long lying west of Block “A”, a strip of property 30 feet wide along the entire north side of Block “A”, and also a strip of property 30 feet wide along the entire south side of Block 11 A”
Whatever may have been the intentions, thoughts, and desires of the owners and dedicators in 1942, nevertheless the facts remain: (a) that a plat was filed in 1942 and a dedication made to the public of the streets and ways shown on the plat; (b) that there was an acceptance of the plat by the City of El Dorado; and (c) that there were sales of lots by the owners and dedicators by reference to the said plat. The law is well settled that, when a plat is filed and sale of lots made with reference to it, then the streets and ways shown on the plat become public property. Brewer v. City of Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Mcbane v. City of Wynne, 127 Ark. 364, 192 S. W. 221; and Brown v. Land, Inc., 236 Ark. 15, 364 S. W. 2d 659.
Furthermore, there was a lapse of over eighteen years from the filing of the plat and deed of dedication in 1942 until the filing of the present suit in 1961, claiming a mistake to have been made by the owners and dedicators in 1942. In the meantime, many people had purchased property, relying on the filed plat and deed of dedication. Even if we assume to be true all of the claimed intentions, thoughts, and desires of the dedicators in 1942, still the fact remains that no one misled any of the dedicators. They filed the plat and deed of dedica tion in 1942, and third persons—the City, the intervenors, and others-—have relied on the plat and deed of dedication. The plaintiffs cannot now be heard in their effort to overcome a unilateral mistake after all these years have passed.
It is urged that the City of El Dorado has not opened all of the streets shown on the plat and deed of dedication, and has thereby allowed some of the appellants to encroach on the streets; hut, as stated in Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655: “. . . the title to the public streets and parkways was in the City of El Dorado and adverse possession could not be acquired against the City. City of Magnolia v. Burton, 213 Ark. 157, 209 S. W. 2d 684.”
Finding no error, the decree is affirmed.
In September 1943 a plat identical with the one previously men- ' tioned was filed entitled, “Corrected Plat.”
There was a second case between Wood and Setliff, 232 Ark. 233, 335 S.W. 2d 305, decided in 1960, and involving- this property.
The plat shows dedication of a strip 50 feet wide, and lying- on the east side of Block “A”; but we understand that this is practically conceded by appellants to have become public property. | [
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-53,
-104,
49,
16,
40,
55,
-90,
-106,
119,
65,
-103,
12,
44,
98,
33,
44,
-73,
-24,
-100,
14,
-8,
13,
-91,
38,
9,
115,
2,
-66,
-104,
125,
81,
71,
126,
-10,
-123,
92,
40,
-49,
-117,
-106,
-79,
-17,
-8,
-116,
3,
-17,
3,
50,
116,
-53,
-30,
-34,
78,
17,
-33,
-57,
-48
] |
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